800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 016 OF 106
COSTLE D M ADMINISTRATOR
EPA
113380
REGULATION
DATA ON THE APPLICABILITY OF MANY VARIANCES, AMONG OTHER THINGS, WILL
BE INCLUDED IN THE PART 264 PHASE II REFERENCE MANUALS (DISCUSSED LATER
IN THIS PREAMBLE) WHICH WILL BE AVAILABLE TO PERMIT WRITERS AND THE
PUBLIC.
SEVERAL TYPES OF MATERIALS (PROCESS WASTES, RESIDUES, ETC.) WHICH MAY
BE CLASSIFIED AS HAZARDOUS WASTES ARE BEING USED TO MAKE COMMERCIAL
PRODUCTS, E.T., FUEL OIL, BUILDING BLOCKS, AND SOIL CONDITIONERS. ASIDE
FROM A FEW RADIOACTIVE SPECIAL WASTES, NO HAZARDOUS WASTE STANDARDS WERE
PROPOSED TO COVER THESE PRODUCTS.
THE AGENCY, HOWEVER, ADDRESSED THE ISSUE OF COMMERCIAL PRODUCTS IN
THE PREAMBLE TO THE PROPOSED REGULATIONS AND EPA INDICATED THAT IT WAS
CONSIDERING DEVELOPING STANDARDS FOR RECONSIDERING DEVELOPING STANDARDS
FOR REUSE OF HAZARDOUS WASTE. ONE SUGGESTED APPROACH WOULD REQUIRE A
PRODUCT MADE FROM HAZARDOUS WASTE NOT TO POSE A THREAT TO HUMAN HEALTH
OR THE ENVIRONMENT GREATER THAN THE THREAT POSED BY THE VIRGIN PRODUCT
IT REPLACES. THE AGENCY REQUESTED COMMENTERS TO INDICATE OTHER FEASIBLE
REGULATORY APPROACHES AND TO PROVIDE DATA WHICH COULD BE USED TO SUPPORT
COMMERCIAL PRODUCT STANDARDS.
COMMENT RESPONSE TO EPA REGULATION OF COMMERCIAL PRODUCTS WAS ALMOST
ENTIRE NEGATIVE. SEVERAL COMMENTERS QUESTIONED EPA'S AUTHORITY TO
PROMULGATE SUCH STANDARDS UNDER RCRA AND SUGGESTED THAT PRODUCT
REGULATION IS MORE PROPERLY THE PURVIEW OF THE CONSUMER PRODUCT SAFETY
COMMISSION AND THE TOXIC SUBSTANCES CONTROL ACT. OTHERS POINTED OUT
THAT THE AGENCY SHOULD ENCOURAGE RECOVERY, RECYCLING, AND RE-USE BUT
THAT REGULATION DISCOURAGES SUCH ACTIVITIES.
EPA BELIEVES IT HAS THE AUTHORITY UNDER RCRA TO REGULATE THE
MANAGEMENT OF MATERIALS WHICH CAN BE CLASSIFIED AS HAZARDOUS WASTES EVEN
WHEN THAT MANAGEMENT INVOLVES THE REUSE OF THE WASTE AS A PRODUCT. (THE
READER IS REFERRED TO THE PREAMBLE ACCOMPANYING THE PROMULGATION OF THE
PART 261 REGULATIONS OF THIS CHAPTER FOR A DISCUSSION OF THE
CIRCUMSTANCES UNDER WHICH RECYCLED MATERIALS MAY BE CLASSIFIED AS
HAZARDOUS WASTES.) ALSO, THE FOCUS OF THE CONSUMER PRODUCT SAFETY
COMMISSION IS NOT ON WASTES AND PRODUCTS MADE FROM THEM. EPA BELIEVES
THAT WASTE-RELATED MATTERS SHOULD, IN MOST CASES, BE DEALT WITH UNDER
RCRA, ALTHOUGH EPA ALSO MAY CHOOSE TO PROMULGATE SOME STANDARDS DEALING
WITH THE RE-USE OF WASTES UNDER THE TOXIC SUBSTANCES CONTROL ACT.
ON THE OTHER HAND, EPA SEES SEVERAL PROBLEMS WITH SETTING GENERIC
REQUIREMENTS FOR THE PROCESSING FOR REUSE, AND RE-USE OF HAZARDOUS
WASTES. FIRST, IT IS DIFFICULT TO DETERMINE GENERICALLY HOW HAZARDOUS
WASTES CAN BE APPROPRIATELY RE-USED OR PROCESSED FOR RE-USE. THE AGENCY
RECOGNIZES THAT THE APPROACH IN THE PREAMBLE TO THE PROPOSED
REGULATIONS, WHICH WOULD HAVE REQUIRED ALL PRODUCTS MADE FROM HAZARDOUS
WASTE TO BE AT LEAST AS SAFE AS VIRGIN PRODUCTS, IS FLAWED AND IS NOT
ADOPTING IT AT PRESENT.
THE AGENCY AGREES WITH THE SUBSTANTIAL BODY OF COMMENT WHICH URGED
THE AGENCY NOT TO PLACE THE HAZARDOUS WASTE STIGMA ON RECOVERED PRODUCTS
WITHOUT VERY GOOD CAUSE. RECOVERY OR RE-USE IS GENERALLY AMONG THE BEST
OF ALL POSSIBLE WAYS TO MINIMIZE THE HAZARDOUS WASTE PROBLEM -- IT
REMOVES THE NEED FOR DISPOSAL WHILE CONSERVING RESOURCES AND ENERGY AND
ELIMINATING THE WASTES ASSOCIATED WITH MAKING VIRGIN PRODUCTS.
REGULATING THE PROCESSING OR RE-USE OF HAZARDOUS WASTES INTO PRODUCTS
COULD DECREASE ACCEPTANCE OF THESE PRODUCTS IN THE MARKETPLACE.
THE AGENCY HAS CONCLUDED THAT THE BEST APPROACH IS CASE-BY-CASE
REGULATION OF SPECIFIC PROCESSING OR RE-USES OF HAZARDOUS WASTE WHERE
THE POTENTIAL HAZARDS OF UNCONTROLLED PROCESSING AND RE-USE ARE CLEAR.
CERTAIN OF THESE REQUIREMENTS MAY BE INCLUDED IN THE PHASE II STANDARDS.
IN THE PHASE I REGULATIONS UNDER RCRA SECTION 3004, THE AGENCY HAS
DECIDED TO REGULATE STORAGE OF HAZARDOUS WASTE WHICH IS LISTED IN
SUBPART D OF PART 261 PRIOR TO ITS USE, RE-USE, RECYCLING, RECLAMATION,
OR TREATMENT FOR THESE PURPOSES. SEVERAL DAMAGE CASES POINT TO THE NEED
FOR A STORAGE REGULATION FOR SUCH WASTES AT THIS TIME. THE AGENCY MAY
INCLUDE ADDITIONAL REQUIREMENTS IN THE PHASE II OR PHASE III STANDARDS.
ON AND AFTER THE EFFECTIVE DATE OF THESE PHASE I REGULATIONS, STORAGE OF
SUCH WASTES IN CONTAINERS, TANKS, PILES OR SURFACE IMPOUNDMENTS, UNTIL
IT IS USED, RE-USED, RECYCLED, RECLAIMED, OR TREATED FOR THESE PURPOSES
IS SUBJECT TO CONTROL UNDER THESE REGULATIONS. THESE REQUIREMENTS APPLY
BOTH TO ON-SITE AND OFF-SITE FACILITIES. FACILITY OWNERS OR OPERATORS
WHO STORE SUCH WASTE PRIOR TO ITS USE, RE-USE, RECYCLING, RECLAMATION,
OR TREATMENT FOR THESE PURPOSES MUST COMPLY WITH THE RCRA SECTION 3010
NOTIFICATION AND SECTION 3005 PERMIT APPLICATION REQUIREMENTS (SEE 40
CFR PART 122) IN ORDER TO QUALIFY FOR INTERIM STATUS.
THE PROPOSED SECTION 250.44 STORAGE STANDARDS REQUIRED THAT STORAGE
BE CONDUCTED SO THAT NO DISCHARGE OF HAZARDOUS WASTE OCCURRED. BECAUSE
MOST WASTES HAVE SOME VAPOR PRESSURE, THE PROPOSED RULES SPECIFIED THAT
ALL HAZARDOUS WASTE MUST BE STORED IN COVERED TANKS OR CONTAINERS. MANY
COMMENTERS CLAIMED THAT THIS "NO DISCHARGE" PERFORMANCE STANDARD FOR ALL
STORAGE WAS TECHNICALLY INFEASIBLE AND INCONSISTENT WITH THE CONCEPT OF
CONTROLLED AIR EMISSIONS UNDER THE CLEAN AIR ACT AND CONTROLLED
DISCHARGES UNDER THE CLEAN WATER ACT. THEY ALSO FELT THAT THE
REQUIREMENT TO STORE WASTE ONLY IN TANKS AND CONTAINERS WAS UNDULY
BURDENSOME; THEY CLAIMED THAT (1) IT IS UNNECESSARY TO STORE
LOW-VOLATILITY WASTES IN COVERED STORAGE DEVICES, AND (2) IT IS
IMPRACTICAL TO STORE BULK-SOLID OR SEMI-SOLID MATERIALS IN ENCLOSED
TANKS OR CONTAINERS. FOR THESE REASONS, THE COMMENTERS RECOMMENDED THAT
STORAGE BE ALLOWED IN DEVICES OTHER THAN STORAGE TANKS AND CONTAINERS
E.G., BASINS, SURFACE IMPOUNDMENTS, AND PILES.
EPA DEVELOPED THE PROPOSED "NO-DISCHARGE" STANDARD BASED ON ITS
INTERPRETATION OF THE RCRA DEFINITION OF "STORAGE" WHICH MEANS ". . .
CONTAINMENT . . . IN SUCH A MANNER AS NOT TO CONSTITUTE DISPOSAL . . ."
RCRA DEFINES "DISPOSAL" AS:
THE DISCHARGE, DEPOSIT, INJECTION, DUMPING, SPILLING, LEAKING, OR
PLACING OF ANY SOLID WASTE OR HAZARDOUS WASTE INTO OR ON ANY LAND OR
WATER SO THAT SUCH SOLID WASTE OR HAZARDOUS WASTE OR ANY CONSTITUENT
THEREOF MAY ENTER THE ENVIRONMENT OR BE EMITTED INTO THE AIR OR
DISCHARGED INTO ANY WATERS, INCLUDING GROUND WATERS.
EPA INTERPRETED THIS STATUTORY LANGUAGE AS REQUIRING "NO DISCHARGE"
(EMISSION) FROM ANY HAZARDOUS WASTE STORAGE FACIITY.
ALTHOUGH SOME COMMENTERS CONSIDERED THIS A PROPER INTERPRETATION OF
THE ACT, OTHERS TOOK STRONG EXCEPTION TO IT AS NOTED ABOVE. COMMENTERS
ALSO CONTENDED THAT THE STANDARD WAS INCONSISTENT WITH THE APPROACH OF
SECTION 3004 OF RCRA WHICH IN THEIR VIEW IS TO MINIMIZE ADVERSE EFFECTS.
THE STANDARDS FOR STORAGE, THEY ARGUED, SHOULD RECOGNIZE THAT THERE ARE
ENVIRONMENTALLY RESPONSIBLE WAYS OTHER THAN NO DISCHARGE TO STORE
HAZARDOUS WASTES, AND SHOULD APPROACH THE PROBLEM BY MINIMIZING THE
POTENTIAL FOR DISCHARGES, OR REQUIRING ONLY THAT NO SIGNIFICANT
DISCHARGES OCCUR. ON A NARROWER LEVEL, COMMENTERS ARGUED THAT UNDER THE
DEFINITION OF DISPOSAL, AIR EMISSIONS FROM MATERIALS THAT HAVE NOT BEEN
DISCHARGED ONTO LAND OR WATER ARE NOT "DISPOSAL"; THUS, RCRA DOES NOT
MANDATE THE PROHIBITION OF AIR EMISSIONS FROM TANKS OR CONTAINERS.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 017 OF 106
COSTLE D M ADMINISTRATOR
EPA
113381
REGULATION
THESE COMMENTS SUGGEST PERHAPS A MORE BASIC ISSUE CONCERNING STORAGE.
WHILE RCRA DEFINES STORAGE AS CONTAINMENT IN SUCH A MANNER AS NOT TO
CONSTITUTE DISPOSAL, IT DOES PERMIT DISPOSAL UNDER APPROPRIATE
CONDITIONS. THUS, IT SEEMS ANOMALOUS IN THE SECTION 3004 REGULATIONS TO
REQUIRE AN ABSOLUTE PROHIBITION OF EMISSIONS WHEN HANDLING OF WASTES IS
CALLED "STORAGE," WHILE PERMITTING SOME LEVEL OF EMISSIONS IN OTHER
FACILITIES PERFORMING "DISPOSAL." SURFACE IMPOUNDMENTS, INDEED, APPEAR
TO FALL SOMEWHERE BETWEEN A CLEAR EXAMPLE OF STORAGE, SUCH AS A SEALED
CONTAINER, AND A CLEAR EXAMPLE OF DISPOSAL, SUCH AS A LANDFILL. AN
UNLINED IMPOUNDMENT, FOR EXAMPLE, MAY BE USED TO ACCUMULATE HAZARDOUS
WASTES FOR A NUMBER OF YEARS, AND OVER THAT TIME AT LEAST SOME OF THE
WASTE WILL ALMOST CERTAINLY MIGRATE INTO THE SOIL UNDER THE IMPOUNDMENT.
YET, IF AT THE END OF ITS LIFE THE RESIDUE AND CONTAMINATED SOIL ARE
REMOVED, THE IMPOUNDMENT MIGHT BE RENDERED NON-HAZARDOUS, AND CERTAINLY
PRESENTS A DIFFERENT PICTURE FROM A LANDFILL. THIS SITUATION SUGGESTS
THAT THE PROPER FOCUS FOR REGULATION OF STORAGE FACILITIES IS ON WHETHER
THE WASTES WILL EVENTUALLY BE REMOVED FROM THE FACILITY. THIS APPROACH
TO STORAGE, UNDER INTERIM STATUS, IS REFLECTED PRIMARILY IN APPROPRIATE
STANDARDS FOR CLOSURE AND FINANCIAL RESPONSIBILITY (I.E., THE COST
ESTIMATE FOR CLOSURE).
THE AGENCY BELIEVES THAT RCRA PERMITS THIS APPROACH. THE DEFINITION
OF STORAGE IN RCRA REFERS TO "CONTAINMENT . . . EITHER ON A TEMPORARY
BASIS OR FOR A PERIOD OF YEARS," WHICH IS A CENTRAL FACTOR IN THE
CURRENT REGULATORY DEFINITION. RCRA APPARENTLY WOULD PERMIT THE AGENCY
TO REGULATE TREATMENT, STORAGE, AND DISPOSAL WITHOUT ANYWHERE
PRESCRIBING DIFFERENT STANDARDS OR APPROACHES FOR FACILITIES FALLING
INTO DIFFERENT STATUTORY CATEGORIES; INDEED, THE STATUTE TYPICALLY, AS
IN SECTION 3004, MENTIONS "TREATMENT, STORAGE, AND DISPOSAL" IN A SINGLE
PHRASE, INDICATING THAT THE SAME STATUTORY PROVISIONS APPLY TO ALL
THREE. THIS IS TO BE COMPARED WITH RCRA'S MUCH DIFFERENT TREATMENT OF
GENERATORS, AND OF TRANSPORTERS. THIS IS NOT TO SAY, OF COURSE THAT THE
AGENCY CANNOT OR SHOULD NOT PRESCRIBE QUITE DIFFERENT STANDARDS FOR
FACILITIES THAT ARE STORAGE FACILITIES (UNDER SOME REGULATORY
DEFINITION) THAN FOR DISPOSAL FACILITIES, BUT SIMPLY TO SAY THAT RCRA
PERMITS THE AGENCY TO USE THAT CONCEPT OF STORAGE WHICH SEEMS MOST
APPROPRIATE FOR REGULATORY PURPOSES.
WITH THESE CONSIDERATIONS IN MIND, AND RECOGNIZING THE IMPRACTICALITY
OF COMPLETELY ELIMINATING EMISSIONS FROM MOST TYPES OF FACILITIES, THE
AGENCY HAS REDEFINED "STORAGE" TO MEAN "THE HOLDING OF HAZARDOUS WASTE
FOR A TEMPORARY PERIOD, AT THE END OF WHICH THE HAZARDOUS WASTE IS
TREATED, DISPOSED OF, OR STORED ELSEWHERE."
A FEW COMMENTERS SUGGESTED THAT THE AGENCY CONSIDER ADDING A STANDARD
WHICH WOULD LIMIT THE TIME OR QUANTITY (OR BOTH) OF WASTE THAT CAN BE
STORED AT A HAZARDOUS WASTE FACILITY. ANY SUCH STANDARD WOULD BEST BE
BASED ON THE TYPE OF WASTE TO BE STORED, THE DESIGN AND CONSTRUCTION OF
THE CONTAINMENT DEVICE USED TO STORE THE MATERIAL, AND THE CLIMATIC
CONDITIONS UNDER WHICH THE STORAGE IS TO TAKE PLACE. AT PRESENT, THE
AGENCY LACKS SUFFICIENT DATA TO DEVELOP SUCH STANDARDS, AND A DETAILED
CONSIDERATION OF SUCH INFORMATION CAN FOR NOW BEST BE MADE IN PERMITTING
PROCEEDINGS. HOWEVER, THE AGENCY EXPECTS TO EXAMINE FURTHER APPROPRIATE
LIMITATIONS FOR STORAGE, AND MAY PROPOSE REGULATIONS IN THE FUTURE.
IN ADDITION, THE CLOSURE AND FINANCIAL RESPONSIBILITY REQUIREMENTS
WILL SET LIMITS INDIRECTLY ON THE QUANTITY OF HAZARDOUS WASTE IN
STORAGE. THE PHASE II FINANCIAL STANDARDS ARE EXPECTED TO REQUIRE THAT
ADEQUATE FUNDS BE PLACED IN THE CLOSURE TRUST (OR OTHER ACCEPTABLE
MECHANISM) TO CLOSE THE FACILITY AT ANY GIVEN TIME, CONSIDERING THE
AMOUNT OF WASTE ON HAND. THE AMOUNT OF THESE FUNDS WILL CREATE A
DEFINITE UPPER LIMIT ON THE AMOUNT OF WASTE IN STORAGE AT ANY TIME, AND
WILL CREATE FINANCIAL INCENTIVES FOR OWNERS AND OPERATORS TO MINIMIZE
THIS AMOUNT.
IN A MAJORITY OF CASES, THE OWNER AND OPERATOR OF A HAZARDOUS WASTE
TREATMENT, STORAGE, OR DISPOSAL FACILITY ARE THE SAME PERSON OR
CORPORATION. HOWEVER, IT IS NOT UNCOMMON FOR AN OPERATOR TO LEASE THE
LAND AND PERHAPS STRUCTURES FROM A LANDOWNER. IN A FEW CASES, THE OWNER
OF THE LAND, THE OWNER OF THE STRUCTURES, AND THE OPERATOR MAY ALL THREE
BE DIFFERENT PERSONS OR COMPANIES.
IN THE PROPOSED REGULATIONS, THE AGENCY USED THE TERM "OWNER/
OPERATOR" WHEN REFERRING TO ANY OR ALL OF THESE PARTIES, AND DEFINED THE
TERM TO MEAN "THE PERSON WHO OWNS THE LAND ON WHICH A FACILITY IS
LOCATED AND/OR THE PERSON WHO IS RESPONSIBLE FOR THE OVERALL OPERATION
OF THE FACILITY." COMMENTERS COMPLAINED THAT THE DEFINITION WAS VAGUE
AND AMBIGUOUS AND THAT IT WAS NOT CLEAR WHO (THE OWNER OR OPERATOR) WAS
RESPONSIBLE OR LIABLE FOR WHAT. A FEW COMMENTERS ALSO POINTED OUT THAT
FOR A FEW OF THE REQUIREMENTS, ONLY THE OWNER CAN LEGALLY COMPLY -- A
CASE IN POINT BEING THE REQUIREMENT TO RECORD A NOTE ON THE DEED IN
PROPOSED SECTION 250.43-7(B).
THE AGENCY'S FIRST PRIORITY IS TO PROTECT HUMAN HEALTH AND THE
ENVIRONMENT. THUS, WHERE THERE HAS BEEN A DEFAULT ON ANY OF THE
REGULATORY PROVISIONS, THE AGENCY WILL ATTEMPT TO GAIN COMPLIANCE AS
QUICKLY AS POSSIBLE. IN SO DOING, THE AGENCY MAY BRING ENFORCEMENT
ACTION AGAINST EITHER THE OWNER OR OPERATOR OR BOTH. EPA CONSIDERS THE
OWNER (OR OWNERS) AND OPERATOR OF A FACILITY JOINTLY AND SEVERALLY
RESPONSIBLE TO THE AGENCY FOR CARRYING OUT THE REQUIREMENTS OF THESE
REGULATIONS.
ONE REASON FOR THIS JOINT RESPONSIBILITY IS THAT, AS THE COMMENTERS
POINTED OUT, THERE IS AT LEAST ONE PROVISION OF THE SECTION 3004
REGULATIONS THAT ONLY THE OWNER CAN COMPLY WITH -- THAT IS THE
REQUIREMENT TO RECORD A NOTATION ON THE DEED TO PROPERTY WHERE HAZARDOUS
WASTE REMAINS AFTER CLOSURE. SECOND, IF THE OWNER IS NOT BOUND BY THE
REGULATIONS, EPA COULD HAVE A VERY HARD TIME TRYING TO IMPLEMENT AND
ENFORCE THE CLOSURE AND FINANCIAL RESPONSIBILITY PROVISIONS OF THE
REGULATIONS. THIRD, THE LEGISLATIVE HISTORY OR RCRA INDICATES THAT
RESPONSIBILITY FOR COMPLYING WITH THE REGULATIONS PERTAINING TO
HAZARDOUS WASTE FACILITIES SHOULD REST EQUALLY WITH OWNERS AND OPERATORS
WHERE THE OWNER IS NOT THE OPERATOR (H.R. REP. NO. 94-1491, 94TH CONG.,
2D SESS. 28 (1976)).
WITH MOST OF THE REGULATIONS, THE AGENCY IS PRIMARILY CONCERNED WITH
COMPLIANCE, AND IS SECONDARILY CONCERNED WITH WHO ENSURES COMPLIANCE.
THE AGENCY BELIEVES THAT DECISIONS CONCERNING WHO SHOULD BE RESPONSIBLE
FOR ENSURING COMPLIANCE FOR WHICH REQUIREMENTS CAN PROPERLY AND
ADEQUATELY BE A MATTER BETWEEN THE OWNER AND OPERATOR. NONETHELESS,
BOTH THE OWNER AND OPERATOR ULTIMATELY REMAIN RESPONSIBLE, REGARDLESS OF
ANY ARRANGEMENT BETWEEN THEM.
SOME FACILITY OWNERS HAVE HISTORICALLY BEEN ABSENTEES, KNOWING AND
PERHAPS CARING LITTLE ABOUT THE OPERATION OF THE FACILITY ON THEIR
PROPERTY. THE AGENCY BELIEVES THAT CONGRESS INTENDED THAT THIS SHOULD
CHANGE AND THAT THEY SHOULD KNOW AND UNDERSTAND THAT THEY ARE ASSUMING
JOINT RESPONSIBILITY FOR COMPLIANCE WITH THESE REGULATIONS WHEN THEY
LEASE THEIR LAND TO A HAZARDOUS WASTE FACILITY. THEREFORE, TO ENSURE
THEIR KNOWLEDGE, THE AGENCY WILL REQUIRE OWNERS TO CO-SIGN THE PERMIT
APPLICATION AND ANY FINAL PERMIT FOR THE FACILITY. PART 122 OF THE
CONSOLIDATED PERMIT REGULATIONS HAS BEEN CHANGED TO REFLECT THIS.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 018 OF 106
COSTLE D M ADMINISTRATOR
EPA
113382
REGULATION
THE AGENCY AGREES WITH THOSE COMMENTERS WHO POINTED OUT THAT IN A FEW
CASES ONLY THE OWNER CAN LEGALLY COMPLY WITH A REQURIEMENT. WHERE THIS
IS SO, THE AGENCY HAS SPECIFIED THE "OWNER" IN THESE FINAL REGULATIONS.
EPA HAS ALSO CHANGED ITS USAGE OF THE TERM "OWNER/OPERATOR" TO "OWNER OR
OPERATOR" TO INDICATE WHEN EPA WILL BE SATISFIED BY COMPLIANCE BY EITHER
PARTY (BUT ALSO TO INDICATE THAT THE AGENCY MAY ENFORCE AGAINST EITHER
OR BOTH).
RCRA IS WRITTEN IN THE PRESENT TENSE AND ITS REGULATORY SCHEME IS
PROSPECTIVE. THEREFORE, THE AGENCY BELIEVES CONGRESSIONAL INTENT TO BE
THAT THE HAZARDOUS WASTE REGULATORY PROGRAM UNDER SUBTITLE C OF RCRA IS
TO CONTROL PRIMARILY HAZARDOUS WASTE MANAGEMENT ACTIVITIES WHICH TAKE
PLACE AFTER THE EFFECTIVE DATE OF THESE REGULATIONS. THUS, THE PROPOSED
SUBTITLE C REGULATIONS DID NOT BY THEIR TERMS APPLY TO INACTIVE (EITHER
CLOSED OR ABANDONED) DISPOSAL FACILITIES.
COMMENTS RECEIVED ON THE SUBJECT POINTED OUT THE NEED TO PROTECT THE
PUBLIC FROM INACTIVE AND ABANDONED DISPOSAL SITES, STRESSING THAT
BECAUSE THESE FACILITIES ARE NORMALLY VERY POORLY DESIGNED AND SITUATED,
THEY REPRESENT A MORE SEVERE HAZARD THAN NEW FACILITIES. LOVE CANAL AND
OTHER DISASTERS WERE CITED TO SUPPORT THIS ARGUMENT.
THE AGENCY AGREES THAT INACTIVE AND ABANDONED HAZARDOUS WASTE SITES
(PARTICULARLY DUMPS, LANDFILLS, AND LAGOONS) MAY POSE SERIOUS HAZARDS TO
HUMAN HEALTH AND THE ENVIRONMENT. RCRA ALREADY PROVIDES ONE TOOL WHICH
CAN BE USED TO DEAL WITH THE PROBLEM OF INACTIVE AND ABANDONED SITES --
THE IMMINENT HAZARD PROVISION OF SECTION 7003. THIS PROVISION -- WHICH
IS APPLICABLE TO BOTH INACTIVE AND ACTIVE SITES -- CAN BE USED TO OBTAIN
INJUNCTIVE RELIEF FROM ANY PARTY WHO CAN BE SHOWN TO BE CAUSING OR
CONTRIBUTING TO ". . . AN IMMINENT AND SUBSTANTIAL ENDANGERMENT TO
HEALTH OR THE ENVIRONMENT . . ."
THE AGENCY IS ACTIVELY USING SECTION 7003 AND OTHER APPLICABLE LAWS
TO FORCE RESPONSIBLE PARTIES TO BEAR THE COSTS OF CLEANING UP SITES
POSING A HAZARD. THESE AUTHORITIES WILL REMAIN IN PLACE AND CONTINUE TO
BE ACTIVELY EMPLOYED EVEN AFTER THE EFFECTIVE DATE OF THE SUBTITLE C
REGULATIONS.
TO PROVIDE SITE CLEANUP IN THOSE SITUATIONS WHERE THE RESPONSIBLE
PARTIES ARE UNKNOWN OR LACK THE FUNDS TO DO THE JOB, THE ADMINISTRATION
HAS PROPOSED "SUPERFUND" LEGISLATION CURRENTLY PENDING IN CONGRESS.
WHILE RCRA'S REGULATORY SCHEME IS GENERALLY PROSPECTIVE, CERTAIN
INACTIVE FACILITIES, OR PORTIONS OF INACTIVE FACILITIES, BECAUSE OF
THEIR RELATIONSHIP TO FACILITIES WHICH CONTINUE TO OPERATE, MAY BE
SUBJECT TO SOME RCRA SUBTITLE C REGULATORY CONTROLS. SOME EXISTING
LANDFILLS OR OTHER FACILITIES ARE EXPECTED TO CLOSE IF THEY DO NOT OR
CANNOT MEET THE SUBTITLE C STANDARDS. THE OWNERS OR OPERATORS MAY THEN
DESIGN A FACILITY WHICH MEETS THE STANDARDS AND APPLY FOR A PERMIT TO
LOCATE IT ON LAND IMMEDIATELY ADJACENT TO THE INACTIVE PORTION. THIS IS
NOT AN IMPROPER ACTION, BUT, IN SOME CASES, PROBLEMS ASSOCIATED WITH THE
INACTIVE SITE (LEACHATE, EMISSIONS, ETC) MAY INTERFERE WITH THE ABILITY
OF THE OWNER OR OPERATOR TO ADEQUATELY MONITOR THE "NEW" FACILITY. IN
THESE CASES, THE REGIONAL ADMINISTRATOR MAY REQUIRE THAAT THE OWNER OR
OPERATOR OF THE NEW FACILITY ENSURE THAT CERTAIN ACTIONS ARE TAKEN ON
THE INACTIVE SITE, IN ORDER TO MINIMIZE OR ELIMINATE ANY INTERFERENCE
WITH MONITORING OR ENFORCEMENT ACTIVITIES AT THE "NEW FACILITY.
IN SOME REGULATORY PROGRAMS REGULATED OPERATIONS ARE SUBJECT TO
DIFFERENT REQUIREMENTS, DEPENDING ON HOW OLD THE OPERATION IS WHEN THE
REGULATORY PROGRAM BEGINS. OFTEN, EXISTING OPERATIONS ARE EXEMPTED OR
ARE SUBJECT TO LESS STRINGENT REGULATIONS THAN NEW OPERATIONS.
THE ORIGINAL LANGUAGE OF RCRA DID NOT DISTINGUISH BETWEEN NEW AND
EXISTING FACILITIES. CONSEQUENTLY, EPA MADE THE PROPOSED SECTION 3004
REGULATIONS APPLICABLE TO BOTH NEW AND EXISTING FACILITIES. THE AGENCY
RECOGNIZED, HOWEVER, THAT SOME EXISTING FACILITIES WOULD HAVE DIFFICULTY
COMPLYING WITH SOME OF THE REGULATIONS. THE AGENCY ENVISIONED THAT THE
"NOTE" (VARIANCE) PROCEDURE, AS WELL AS THE USE OF COMPLIANCE SCHEDULES
WOULD ACCOMODATE THE POSSIBLE DIFFICULTIES ASSOCIATED WITH RETROFITTING
EXISTING FACILITIES.
THE AGENCY RECEIVED NUMEROUS COMMENTS ON THIS GENERAL ISSUE. THE
MOST FREQUENT COMMENT ON THE SUBJECT CONCERNED RCRA COVERAGE OF NPDES
PERMITTED WASTEWATER TREATMENT IMPOUNDMENTS. NEARLY ALL COMMENTERS WERE
OPPOSED TO HAVING RCRA COVER THESE IMPOUNDMENTS, CITING THE
IMPRACTICALITY OF RETROFITTING EXISTING LAGOONS TO MEET THE PROPOSED
STANDARDS. SPECIFIC COMMENTS ADDRESSED:
(A) THE TREMENDOUS COST ASSOCIATED WITH LINING EXISTING IMPOUNDMENTS
OR BUILDING NEW ONES.
(B) THE COSTS OF TRANSPORTING WASTES TO OFF-SITE FACILITIES FROM
MANUFACTURING OPERATIONS WHICH MAY BE LOCATED IN AREAS WHICH ARE
UNSATISFACTORY FOR WASTE MANAGEMENT.
(C) THE LIKELIHOOD THAT MANY MANUFACTURING PLANTS WOULD HAVE TO CLOSE
WHILE THE IMPOUNDMENT WAS BEING RETROFITTED, AND
(D) THE POSSIBILITY THAT SOME EXISTING FACILITIES MAY NOT BE
POLLUTING NOW AND MAY NEVER IN THE FUTURE POLLUTE THE ENVIRONMENT, EVEN
THOUGH THEY DO NOT MEET ALL OF THE PROPOSED RCRA SURFACE IMPOUNDMENT
STANDARDS.
AFTER SUBSTANTIAL ADDITIONAL STUDY, EPA HAS CONCLUDED THAT THE
PROPOSED SURFACE IMPOUNDMENT REGULATIONS CAN BE CHANGED TO ANSWER MANY
OF THE COMMENTERS' CONCERNS ABOUT THEIR APPLICATION TO EXISTING
WASTEWATER TREATMENT IMPOUNDMENTS. THE AGENCY, IN KEEPING WITH ITS
GENERAL GUIDELINE OF NOT IMPOSING MAJOR CAPITAL EXPENDITURES ON EXISTING
FACILITIES DURING INTERIM STATUS WILL NOT REQUIRE EXTENSIVE RETROFITTING
OF EXISTING SURFACE IMPOUNDMENTS IN THE INTERIM STATUS STANDARDS.
FURTHERMORE, IT IS ANTICIPATED THAT THE GENERAL REGULATIONS YET TO BE
PROMULGATED IN PHASES II AND III WILL ALSO NOT REQUIRE RETROFITTING OF
THESE FACILITIES, IF THE OWNER OR OPERATOR CAN DEMONSTRATE THAT THE
IMPOUNDMENT IS NOT CONTRIBUTING STATISTICALLY SIGNIFICANT QUANTITIES OF
CONTAMINANTS TO GROUND WATER. THE PHASE I REGULATIONS REQUIRE A
GROUND-WATER MONITORING PROGRAM IN ORDER TO DETERMINE WHETHER AN
IMPOUNDMENT IS POLLUTING. REGULATIONS YET TO BE ISSUED IN PHASES II AND
III OF THIS REGULATORY PROGRAM WILL SET FORTH ADDITIONAL TECHNICAL
REQUIREMENTS FOR IMPOUNDMENTS. MOST OF THESE REQUIREMENTS PROBABLY WILL
NOT APPLY TO EXISTING IMPOUNDMENTS FOUND NOT TO BE AFFECTING GROUND
WATER.
THE AGENCY BELIEVES THAT THIS REGULATORY APPROACH WILL (1)
SUBSTANTIALLY REDUCE THE NUMBER OF EXISTING NPDES FACILITIES WHICH MIGHT
OTHERWISE HAD TO HAVE BEEN RETROFITTED, CLOSED, OR REPLACED IN ORDER TO
COMPLY WITH THE PROPOSED SUBTITLE C RULES, AND (2) ENSURE THAT HUMAN
HEALTH AND THE ENVIRONMENT IS PROTECTED. FURTHER, THIS APPROACH IS
CONSISTENT WITH PENDING CONGRESSIONAL AMENDMENTS TO RCRA.
SOME COMMENTERS SUGGESTED THAT ALL EXISTING FACILITIES, AND
PARTICULARLY EXISTING LANDFILLS, SHOULD BE REGULATED DIFFERENTLY THAN
NEW FACILITIES. AFTER CAREFUL CONSIDERATION, THE AGENCY HAS CONCLUDED,
FOR THE FOLLOWING REASONS, THAT LANDFILLS DO NOT POSE THE SPECIAL
PROBLEMS OR DESERVE THE SAME CONSIDERATION AS "EXISTING" FACILITIES THAT
SURFACE IMPOUNDMENTS DO:
(1) SECTIONS OF LANDFILLS ARE TYPICALLY FILLED IN SEQUENTIALLY;
I.E., ONE TRENCH OR PART (CELL) OF THE TOTAL LANDFILL AREA IS FILLED AND
THEN ANOTHER PART IS FILLED.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 019 OF 106
COSTLE D M ADMINISTRATOR
EPA
113383
REGULATION
THIS ACTIVITY MAY OR MAY NOT BE DONE IN DISCRETE INCREMENTS, BUT IT
IS ALMOST ALWAYS DONE IN PROGRESSION MOVING AWAY FROM A STARTING POINT.
THUS, OWNERS OR OPERATORS CAN CLOSE EXISTING PORTIONS OF MOST LANDFILLS
AT VIRTUALLY ANY TIME WITHOUT RETROFITTING THE FACILITY AND CAN DESIGN
THE UNCLOSED PORTION IN ACCORDANCE WITH THE RCRA STANDARDS. THIS OPTION
IS NOT AVAILABLE TO IMPOUNDMENT OWNERS OR OPERATORS BECAUSE THE ENTIRE
BASE OF THE IMPOUNDMENT IS NORMALLY COVERED WITH WASTES FROM THE
BEGINNING OF THE OPERATIONS.
(2) IMPOUNDMENTS ARE USUALLY TEMPORARY STRUCTURES; I.E., WASTED ARE
NORMALLY REMOVED FROM SUCH FACILITIES WHEN THEY ARE CLOSED. BY
CONTRAST, LANDFILLS NORMALLY CONSTITUTE PERMANENT DISPOSAL; I.E.,
WASTES REMAIN IN LANDFILLS ESSENTIALLY FOREVER.
(3) LANDFILLS ARE NOT NORMALLY INTEGRALLY CONNECTED TO MANUFACTURING
OPERATIONS. THEREFORE, ANY NECESSARY RETROFITTING WHICH REQUIRES
DIVERTING SOLID WASTE TO STORAGE OR OTHER FACILITIES WOULD NOT BE LIKELY
TO CAUSE THE MANUFACTURING OPERATION TO SHUT DOWN DURING THE RETROFIT
PERIOD. THIS IS NOT THE CASE WITH SURFACE IMPOUNDMENTS, WHICH TYPICALLY
ARE INTEGRAL COMPONENTS OF MANUFACTURING OPERATIONS.
SIMILARLY, EXCEPT FOR SOME MINOR CHANGES, THE AGENCY COULD FIND NO
GOOD REASON FOR MAKING MAJOR DISTINCTIONS BETWEEN NEW AND EXISTING
INCINERATORS, STORAGE FACILITIES, AND OTHER KINDS OF FACILITIES IN THESE
PHASE I REGULATIONS.
COMMENTERS ALSO POINTED TO THE IMPRACTICALITY OF THE SITING
STANDARDS, WHICH WOULD HAVE REQUIRED CLOSURE OF ALL EXISTING FACILITIES
WHICH WERE NOT LOCATED IN AREAS WHICH MET THE PROPOSED SITING
REQUIREMENTS. NO LOCATION STANDARDS ARE INCLUDED IN THE PHASE I
REGULATIONS (SEE PREAMBLE DISCUSSION ON "INTERIM STATUS STANDARDS").
EPA IS CONSIDERING WHAT RELIEF CONSONANT WITH RCRA'S HUMAN HEALTH AND
ENVIRONMENTAL PROTECTION MANDATE MIGHT BE GRANTED TO EXISTING FACILITIES
UNABLE TO COMPLY WITH THE LOCATION STANDARDS. EPA EXPECTS TO ADDRESS
THESE CONSIDERATIONS IN THE PHASE II STANDARDS.
REGULATIONS, AND STANDARDS
IN THE PROPOSED REGULATIONS, MANY REFERENCES WERE MADE TO LEGISLATION
AND REGULATIONS OTHER THAN RCRA TO ALERT OWNERS AND OPERATORS THAT THESE
LAWS AND REGULATIONS MIGHT APPLY TO THEIR FACILITIES. THESE INCLUDED
REFERENCES TO PROPOSED AND FINAL FEDERAL REGULATIONS, STATE STANDARDS,
INDUSTRY STANDARDS, AND EXECUTIVE ORDERS.
MANY COMMENTS WERE RECEIVED CONCERNING THIS PRACTICE. THESE COMMENTS
CHALLENGED THE LEGALITY AND THE APPROPRIATENESS OF REFERENCING OR
INCORPORATING STANDARDS FROM OTHER REGULATIONS. SEVERAL COMMENTERS
STATED THAT, BY CITING REQUIREMENTS FROM OTHER LEGISLATION OR
REGULATIONS IN RCRA REGULATIONS, EPA WOULD BE INCLUDING PROVISIONS THAT
ARE SUBJECT TO CHANGE BY THE AUTHORITY RESPONSIBLE FOR THE REFERENCED
REGULATION, WITHOUT REGARD FOR REQUIRED PUBLIC PARTICIPATION UNDER THE
ADMINISTRATIVE PROCEDURE ACT (5 U.S.C. 533). OTHER COMMENTERS
DISCUSSED THE POTENTIAL FOR DUPLICATE CIVIL OR CRIMINAL PENALTIES WHICH
WOULD RESULT FROM EPA REFERENCES TO OTHER ACTS IN THE SECTION 3004
STANDARDS. COMMENTERS STATED THAT CONGRESSIONAL INTENT WAS NOT TO MAKE
A VIOLATION UNDER ONE SET OF REGULATIONS A VIOLATION UNDER ANOTHER. FOR
EXAMPLE, IN THE VIEW OF COMMENTERS, A NATIONAL POLLUTION DISCHARGE
ELIMINATION SYSTEM (NDES) PERMIT VIOLATION SHOULD NOT AUTOMATICALLY BE A
RCRA PERMIT VIOLATION.
THE AGENCY AGREES WITH CERTAIN OF THESE ARGUMENTS AND HAS DELETED
REFERENCES TO OTHER ACTS, REGULATIONS OR LAWS WHICH WOULD CONSTITUTE AN
UNWARRANTED IMPOSITION OF DUPLICATE LIABILITY. HOWEVER, EPA ALWAYS MAY
ADOPT LANGUAGE IDENTICAL OR SIMILAR TO THAT OF ANOTHER STATUTE,
REGULATION, OR CODE OF PRACTICE, IF, IN EPA'S JUDGMENT, THE STANDARD IS
PERTINENT AND INDEPENDENTLY SUPPORTABLE UNDER RCRA. FOR EXAMPLE, THE
REQUIREMENT FOR SETBACK DISTANCES FOR TANKS CONTAINING IGNITABLE WASTE
IS ADOPTED DIRECTLY FROM THE NATIONAL FIRE PROTECTION ASSOCIATION (NFPA)
"FLAMMABLE COMBUSTIBLE CODE -- 1977" FOR STORAGE TANKS; IT IS
INDEPENDENTLY SUPPORTABLE FOR RCRA PURPOSES, AND IS NOW EFFECTIVE
REGARDLESS OF CHANGES MADE BY NFPA.
1. UNDERGROUND INJECTION CONTROL PROGRAM. THE FINAL RCRA INTERIM
STATUS STANDARDS REGULATE THE UNDERGROUND INJECTION OF HAZARDOUS WASTE
UNTIL THESE ACTIVITIES RECEIVE A PERMIT UNDER A STATE UIC PROGRAM
APPROVED OR PROMULGATED UNDER THE SAFE DRINKING WATER ACT (SDWA).
THEREAFTER, THEY WILL RECEIVE A PERMIT BY RULE UNDER RCRA. HOWEVER,
UNDERGROUND INJECTION FACILITIES TYPICALLY HAVE ABOVE-GROUND TREATMENT
AND STORAGE OPERATIONS WHICH ARE AND WILL REMAIN SUBJECT TO RCRA
CONTROLS AS HAZARDOUS WASTE MANAGEMENT FACILITIES. THUS, MOST OF THESE
FACILITIES WILL ULTIMATELY REQUIRE BOTH RCRA AND UIC PERMITS. TO
FACILITATE THE GRANTING OF THESE PERMITS, EPA HAS CONSOLIDATED THE
PERMIT AND STATE PROGRAM AUTHORIZATION PROCEDURES FOR THE TWO PROGRAMS.
THESE CONSOLIDATED PROCEDURES WILL ALLOW EPA, OR A STATE, IF IT HAS AN
APPROVED PROGRAM, TO PROCESS RCRA AND UIC PERMITS TOGETHER, THEREBY
AVOIDING OVERLAP AND INCONSISTENCIES. (SEE THE PREAMBLE DISCUSSION ON
SUBPART A AND ON SUBPART R -- UNDERGROUND INJECTION FOR MORE DETAILS ON
THE INTEGRATION OF RCRA AND SDWA.)
2. OCEAN DISPOSAL PROGRAM. THE DISPOSAL OF HAZARDOUS WASTE IN THE
OCEAN IS REGULATED UNDER THE AUTHORITY OF THE MARINE PROTECTION,
RESEARCH, AND SANCTUARIES ACT. EPA HAS, THEREFORE, IN PART 122 OF THE
CONSOLIDATED PERMIT REGULATIONS, GRANTED THESE FACILITIES A PERMIT BY
RULE TO AVOID DUPLICATIVE REGULATION. HOWEVER, MOST OCEAN DISPOSAL
OPERATIONS INVOLVE ON-SHORE FACILITIES WHICH MAY STORE OR TREAT
HAZARDOUS WASTE PRIOR TO OCEAN DISPOSAL. THESE STORAGE AND TREATMENT
FACILITIES ARE SUBJECT TO THESE SECTION 3004 REGULATIONS AND WILL
REQUIRE A RCRA PERMIT. THEREFORE, IT WILL BE NECESSARY TO COORDINATE
THE TWO EPA REGULATORY PROGRAMS WHICH HAVE JURISDICTION IN THIS AREA.
IN ADDITION, WHERE WASTES SUBJECT TO RCRA CONTROL ARE DELIVERED DIRECTLY
TO A BARGE OR OTHER VESSEL WHICH CONDUCTS OCEAN DISPOSAL OPERATIONS,
SUCH VESSELS WILL HAVE TO COMPLY WITH CERTAIN REQUIREMENTS OF RCRA.
THIS IS NECESSARY TO COMPLETE THE MANIFEST SY STEM. THUS, THE OWNERS OF
SUCH VESSELS MUST NOTIFY THE AGENCY IN ACCORDANCE WITH SECTION 3010 OF
RCRA AND COMPLY WITH THE MANIFEST REQUIREMENTS. THE PERMIT BY RULE
PROVISIONS OF PART 122 MAKE THESE OBLIGATIONS CLEAR.
3. NPDES PERMITTED FACILITIES. COMMENTERS RAISED THREE MAJOR ISSUES
WITH REGARD TO THE COVERAGE OF NPDES PERMITTED FACILITIES AND THEIR
WASTES UNDER RCRA. THESE ARE DISCUSSED IN TURN BELOW. ONE, COMMENTERS
QUESTIONED THE EXCLUSION OF POTW'S FROM REGULATION UNDER SECTION 3004.
PROPOSED SECTION 250.40(C)(3) REQUIRED THAT POTWS THAT RECEIVED
HAZARDOUS WASTE BY TRUCK OR RAIL COMPLY ONLY WITH THE MANIFEST SYSTEM;
OTHER POTWS WERE NOT SUBJECT TO SUBTITLE C AT ALL BECAUSE MIXED
INDUSTRIAL AND DOMESTIC SEWAGE WASTE STREAMS WERE CONSIDERED "DOMESTIC
SEWAGE," AND THUS NOT "SOLID WASTE." TWO, COMMENTERS QUESTIONED THE
INCLUSION, AS FACILITIES SUBJECT TO SECTION 3004 REGULATIONS, OF
INDUSTRIAL WASTEWATER TREATMENT TRAIN FACILITIES WITH DISCHARGES
PERMITTED UNDER SECTION 402 OF THE CLEAN WATER ACT; AND THREE,
COMMENTERS QUESTIONED THE EXCLUSION OF SEWAGE SLUDGE FROM REGULATION AS
A HAZARDOUS WASTE, AS PROPOSED IN SECTION 250.10(D)(2)(III). THE
SECTION 3001 PREAMBLE ANALYZES AND RESPONSE TO THESE COMMENTS IN SOME
DETAIL BECAUSE ALL THREE ISSUES DEPEND ON WHETHER CERTAIN MATERIALS ARE
"SOLID WASTE" AND THUS, IF HAZARDOUS, SUBJECT TO REGULATION UNDER
SUBTITLE C OF RCRA.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 020 OF 106
COSTLE D M ADMINISTRATOR
EPA
113384
REGULATION
A. REGULATION OF POTWS AS SECTION 3004 FACILITIES. TO SUMMARIZE,
DOMESTIC SEWAGE, WHICH IS EXCLUDED FROM THE STATUTORY DEFINITION OF
SOLID WASTE IN SECTION 1004(27) OF RCRA, IS DEFINED IN SECTION 261.4 OF
THE SECTION 3001 REGULATIONS AS "UNTREATED SANITARY WASTES THAT PASS
THROUGH A SEWER SYSTEM." IN ADDITION, ANY MISTURE OF DOMESTIC SEWAGE AND
OTHER WASTES THAT PASS THROUGH A SEWER SYSTEM TO A POTW FOR TREATMENT
ARE EXCLUDED FROM THE REGULATORY DEFINITION OF SOLID WASTE. THAT
REGULATORY EXCLUSION IS BASED ON THE LEGISLATIVE HISTORY OF THE SOLID
WASTE DISPOSAL ACT. EPA BELIEVES THAT SUCH MIXED WASTE STREAMS PROPERLY
SHOULD BE SUBJECT TO CONTROLS UNDER THE CLEAN WATER ACT'S CONSTRUCTION
GRANTS PROGRAM AND PRETREATMENT PROGRAMS. BECUASE THE TREATMENT OF
SEWAGE BY PRIVATLY OWNED TREATMENT WORKS IS NOT SIMILARLY CONTROLLED BY
EPA, THERE IS NO EXCLUSION IN THE SECTION 3001 REGULATIONS FOR MIXED
WASTE STREAMS GOING TO SUCH FACILITIES. ON THE OTHER HAND, PUBLICLY
OWNED OR PRIVATELY OWNED WASTEWATER TREATMENT WORKS THAT RECEIVE
HAZARDOUS WASTE BY TRUCK, RAIL OR PIPE ARE TREATMENT OR STORAGE
FACILITIES SUBJECT TO SECTION 3004 REGULATIONS, ALTHOUGH AS THE PURPOSE,
SCOPE AND APPLICABILITY (SUBPART A) DISCUSSION IN THIS PREAMBLE POINTS
OUT, THE SAME EXPRESSIONS OF CONGRESSIONAL INTENT THAT LED EPA TO TREAT
MIXED WASTE STREAMS PASSING THROUGH SEWER SYSTEMS TO POTWS DIFFERENTLY
THAN THOSE FLOWING TO PRIVATE TREATMENT WORKS ALSO HAVE LED THE AGENCY
TO TREAT POTWS AND PRIVATE TREATMENT WORKS DIFFERENTLY UNDER SECTION
3004 AND 3005 REGULATIONS.
B. REGULATION OF NPDES TREATMENT TRAIN FACILITIES UNDER SECTION
3004. THE SECOND ISSUE RAISED BY COMMENTERS WASTHAT THE EXCLUSION OF
"SOLID OR DISSOLVED MATERIALS IN . ' . INDUSTRIAL DISCHARGES WHICH ARE
POINT SOURCES SUBJECT TO PERMITS UNDER SECTION 402 OF THE FEDERALWATER
POLLUTION CONTROL ACT" FOR THE DEFINITION OF "SOLID WASTE" IN SECTION
1004(27) OF RCRA, EXCLUDED FACILITIES THAT ARE PART OF TREATMENT TRAINS
LEADING TO SUCH DISCHARGES FROM SUBTITLE C COVERAGE. EPA DISAGREES AND
CONSTRUES THE EXCLUSION FOR POINT SOURCES TO APPLY ONLY TO ACTUAL
DISCHARGES INTO NAVIGABLE WATERS, NOT TO INDUSTRIAL WASTEWATERS UPSTREAM
FROM THE POINT OF DISCHARGE. THE RESULT OF EPA'S INTERPRETATION IS
THAT, AS PROPOSED, SURFACE IMPOUNDMENTS, TANKS, LAGOONS, HOLDING PONDS
AND OTHER FACILITIES USED TO TREAT, STORE OR DISPOSE OF HAZARDOUS
INDUSTRIAL WASTEWATERS MUST MEET APPLICABLE SECTION 3004 STANDARDS AND
MUST OBTAIN A SECTION 3005 PERMIT. THE STANDARDS TO WHICH EXISTING
SURFACE IMPOUNDMENTS WILL BE SUBJECT ARE DISCUSSED IN THE SECTION OF
THIS PREAMBLE ENTITLED "NEW AND EXISTING FACILITIES" AND THE SECTION ON
SURFACE IMPOUNDMENTS (SUBPART K).
C. REGULATION OF SEWAGE SLUDGE UNDER SUBTITLE C. EPA AGREES WITH
THE COMMENTERS WHO ARGUED THAT SEWAGE SLUDGE FROM POTWS SHOULD NOT BE
CATEGORICALLY EXEMPTED FROM REGULATION AS A HAZARDOUS WASTE. THOSE
SEWAGE SLUDGES WHICH ARE HAZARDOUS NOW FALL WITHIN THE JURISDICTION OF
SUBTITLE C OF RCRA. THE SECTION 3001 PREAMBLE SUMMARIZES AND RESPONDS
TO THE COMMENTS ON THIS ISSUE AND ALSO DISCUSSES EPA'S EFFORTS TO
INTEGRATE AND COORDINATE ITS REGULATORY ACTIONS GOVERNING SEWAGE SLUDGE.
4. BAT TOXICS AND PRETREATMENT STANDARDS. MAYNY COMMENTERS STRONGLY
URGED AVOIDING CONFLICTS BETWEEN THESE RCRA REGULATIONS AND OTHER
REGULATORY PROGRAMS, INCLUDING THE BAT AND PRETREATMENT PROGRAMS.
THE CLEAN WATER ACT PROVIDES A COMPREHENSIVE SCHEME FOR THE
REGULATION OF DISCHARGES TO NAVIGABLE WATERS. THIS SCHEME INCLUDES A
ROLE FOR EPA IN THE ESTABLISHMENT OF EFFLUENT LIMITATIONS GUIDELINES
THAT SET TECHNOLOGY BASED EFFLUENT LIMITATIONS FOR SPECIFIC POLLUTATNTS
IN THE EFFLUENTS OF CERTAIN CLASSES OF INDUSTRIAL POINT SOURCES. THESE
STANDARDS, AND OTHER APPLICABLE REQUIREMENTS SUCH AS STATE WATER QUALITY
STANDARDS, ARE USED BY EPA AND APPROVED STATES IN THE ESTABLISHMENT OF
SPECIFIC PERMIT CONDITIONS UNDER THE NPDES PROGRAM.
THE EFFLUENT LIMITATIONS GUIDELINES MAY BE WRITTEN FOR CONVENTIONAL
POLLUTANTS (E.G., SUSPENDED SOLIDS, FECAL COLIFORM, BIOCHEMICAL OXYGEN
DEMAND) OR TOXIC POLLUTANTS (A LIST OF OVER 65 CHEMICAL SUBSTANCES AND
HEAVY METALS). FOR CONVENTIONAL POLLUTANTS, DISCHARGERS MUST ACHIEVE
EFFLUENT LIMITS ATTAINABLE BY THE "BEST CONVENTIONAL POLLUTANT CONTROL
TECHNOLOGY" (BCT) BY JULY 1, 1984. FOR TOXIC POLLUTANTS, DISCHARGERS
MUST ACHIEVE EFFLUENT LIMITS ATTAINABLE BY THE "BEST AVAILABLE
TECHNOLOGY ECONOMICALLY ACHIEVABLE" (BAT) BY JULY 1, 1984.
IN ADDITION, THE CLEAN WATER ACT CREATED A PRETREATMENT PROGRAM,
WHICH PROVIDES THE BASIS FOR REGULATING DISCHARGES TO SEWERS SERVED BY
PUBLICLY-OWNED TREATMENT WORKS. THIS PROGRAM IS DESIGNED TO INSURE THAT
USERS OF PUBLIC SEWER SYSTEMS DO NOT DISCHARGE POLLUTANTS INTO THE
SYSTEM THAT WOULD (1) INTERFERE WITH THE OPERATION OF THE TREATMENT
WORKS, (2) CAUSE THE POTW'S DISCHARGE TO NAVIGABLE WATERS TO EXCEED THE
REQUIREMENTS THAT WOULD OTHERWISE BE APPLICABLE TO THE USER'S DISCHARGE
IF HE HAD DISCHARGED DIRECTLY, OR (3) INTERFERE WITH THE POTWS ABILITY
TO SAFELY DISPOSE OF ITS SEWAGE SLUDGE. SOLID WASTE POLLUTION IS ONE OF
THE FACTORS EPA CONSIDERS WHEN ANALYZING WATER PROBLEMS AND DEVELOPING
BAT AND PRETREATMENT REGULATIONS. WHILE THESE RCRA REGULATIONS ARE
DESIGNED PRIMARILY TO ADDRESS GROUND-WATER POLLUTION FROM HAZARDOUS
WASTE MANAGEMENT, THE AGENCY CLEARLY HAS AUTHORITY UNDER RCRA TO ADDRESS
SURFACE WATER AND AIR POLLUTION. THUS THERE IS OVERLAPPING JURISDICTION
BETWEEN THE CWA AND RCRA.
DUE TO THE SPECIFIC EXCLUSION OF DISCHARGES PERMITTED UNDER SECTION
402 IN SECTION 1004(27) FROM RCRA, AND THE COMPREHENSIVENESS OF THE
CLEAN WATER ACT PROGRAMS, EPA HAS DECIDED TO RELY ON THOSE PROGRAMS TO
REGULATE THE DISCHARGE OF WASTEWATER EFFLUENTS (WHICH MAY BE HAZARDOUS)
TO NAVIGABLE WATERS. IN ADDITION, THE AGENCY'S PRETREATMENT PROGRAM
WILL BE USED TO REGULATE SUCH DISCHARGES TO SEWER SYSTEMS SERVED BY
POTW'S.
IT MUST BE RECOGNIZED, HOWEVER, THAT THIS USE OF CLEAN WATER ACT
PROGRAMS TO REGULATE HAZARDOUS WASTES ONLY EXTENDS AS FAR AS THE
JURISDICTION AND GOALS OF THOSE PROGRAMS. MANAGEMENT ACTIVITIES AND
ENVIRONMENTAL OBJECTIVES FOR HAZARDOUS WASTE FACILITIES WHICH ARE NOT
ADDRESSED BY THE CLEAN WATER ACT, OR WHICH CAN BE ADDRESSED MORE
EFFICIENTLY UNDER RCRA, ARE AND WILL CONTINUE TO BE ADDRESSED UNDER RCRA
REGULATIONS. THUS, FOR EXAMPLE, PRETREATMENT UNIT OPERATIONS MAY
REQUIRE A RCRA PERMIT TO OPERATE IF THE FEED TO THE FACILITY IS
HAZARDOUS AND THE PROCESS IS NOT INTEGRALLY CONNECTED (VIA PIPE OR
CONVEYOR) TO A MANUFACTURING OPERATION. LIKEWISE ANY IMPOUNDMENT
CONTAINING A HAZARDOUS WASTE IS COVERED BY THESE REGULATIONS,
PARTICULARLY WITH REGARD TO THEIR EFFECT ON AIR AND GROUND WATER, UNTIL
THE HAZARDOUS WASTE IN THE IMPOUNDMENT COMES WITHIN CWA JURISDICTION.
5. CLEAN AIR ACT. OWNER AND OPERATORS OF HAZARDOUS WASTE MANAGEMENT
FACILITIES MUST COMPLY WITH ALL APPLICABLE STANDARDS PROMULGATED UNDER
THE AUTHORITY OF THE CLEAN AIR ACT. HOWEVER, AT THE MOMENT, VERY FEW
HAZARDOUS EMISSION POLLUTANT STANDARDS OR NEW SOURCE PERFORMANCE
STANDARDS UNDER THE FEDERAL CLEAN AIR ACT APPLY TO HAZARDOUS WASTE
FACILITIES.
RCRA, IN SECTION 1006(B) CALLS UPON THE ADMINISTRATOR TO INTEGRATE
THESE REGULATIONS WITH THE CLEAN AIR ACT, "TO THE EXTENT THAT IT CAN BE
DONE IN A MANNER CONSISTENT WITH THE GOALS AND POLICIES EXPRESSED IN
THIS ACT" AND IN THE CLEAN AIR ACT.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 021 OF 106
COSTLE D M ADMINISTRATOR
EPA
113385
REGULATION
SIGNIFICANTLY, SECTION 1006(A) DOES NOT INCLUDE THE CLEAN AIR ACT IN
THE LIST OF STATUTES WHOSE REGULATEES ARE EXCLUDED FROM RCRA REGULATION
TO THE EXTENT SUCH REGULATION IS "INCONSISTENT" WITH THE OTHER ACT.
THIS STATUTORY STRUCTURE GRANTS CONSIDERABLE DISCRETION TO THE
ADMINISTRATOR IN CHOOSING WHICH STATUTE TO RELY UPON FOR THE MOST
EFFICIENT AND EFFECTIVE CONTROL OF HAZARDOUS WASTES AFFECTING THE AIR.
THE HAZARDOUS POLLUTANT PROVISIONS OF THE CLEAN AIR ACT REQURE THE
USE OF CERTAIN PROCEDURES FOR EACH POLLUTANT REGULATED. BECAUSE WASTES
ARE USUALLY COMPLEX MIXTURES OF MANY MATERIALS, HAZARDOUS WASTE
FACILITIES ARE CAPABLE OF EMITTING THOUSANDS OF DIFFERENT SUBSTANCES TO
THE AIR, MANY OF WHICH ARE TOXIC. THE PROCEDURES OF THE CLEAN AIR ACT
WOULD BE A LESS EFFICIENT WAY TO CONTROL A LARGE NUMBER OF HAZARDOUS AIR
POLLUTANTS THAN RCRA, UNDER WHICH DESIGN, OPERATION, OR PERFORMANCE
CRITERIA (SUCH AS INCINERATOR DESTRUCTION EFFICIENCIES) CAN BE SET MORE
EASILY FOR THE MANY POLLUTANTS EMITTED BY FACILITIES. THEREFORE, THE
AGENCY HAS CHOSEN RCRA AS THE PRIMARY VEHICLE FOR CONTROLLING AIR
EMISSIONS FROM HAZARDOUS WASTE FACILITIES.
IN DEVELOPING REGULATIONS TO CONTROL AIR EMISSIONS FROM HAZARDOUS
WASTE FACILITIES, THE AGENCY'S GREATEST CHALLENGE HAS BEEN IN
CORRELATING WASTE VOLATILITY CHARACTERISTICS WITH POTENTIAL AIR EMISSION
HAZARDS. AS STATED EARLEIR IN THIS PREAMBLE, EPA HAS THUS FAR BEEN
UNABLE TO DEVELOP A PROTOCOL FOR PREDICTING HAZARD POTENTIAL BASED ON
THE VOLATILITY OF A WASTE, BUT IS CONTINUING ITS INVESTIGATIONS.
6. TOXIC SUBSTANCES CONTROL ACT, FINAL RULES REGARDING DISPOSAL AND
MARKING REQUIREMENTS FOR POLYCHLORINATED BIPHENYLS (PCBS) WERE
PROMULGATED ON FEBRUARY 17, 1978, AND MAY 31, 1979, UNDER SECTION 6(E)
OF THE TOXIC SUBSTANCES CONTROL ACT (TSCA). THOSE RULES ARE INTENDED TO
PROTECT THE ENVIRONMENT FROM FURTHER CONTAMINATION RESULTING FROM
IMPROPER HANDLING AND DISPOSAL OF PCBS.
BECAUSE OF THE POTENTIAL OVERLAP BETWEEN THE RCRA HAZARDOUS WASTE
MANAGEMENT STANDARDS AND THE TSCA PCB MARKING AND DISPOSAL REGULATIONS,
THE AGENCY SOLICITED COMMENTS IN THE PREAMBLE TO THE PROPOSED RCRA
REGULATIONS ON HOW IT SHOULD MANAGE THE TSCA PCB REGULATIONS (AND BY
INFERENCE, OTHER SPECIFIC TOXIC WASTES) VIS-A-VIS THE RCRA REGULATIONS.
MOST COMMENTERS WERE EQUALLY DIVIDED BETWEEN TWO POSITIONS:
(1) PUBLISH THE TSCA PCB AND RCRA REGULATIONS INDEPENDENTLY AND
EXEMPT PCBS FROM RCRA REQUIREMENTS, OR (2) MERGE THE PCB RULES WITH THE
RCRA STANDARDS AND CO-PROMULGATE THEM.
TO MINIMIZE CONFUSION AND THE BURDEN ON THE REGULATED COMMUNITY, THE
AGENCY HAS TENTATIVELY DETERMINED THAT WHEREVER POSSIBLE, HAZARDOUS
WASTE MANAGEMENT CONTROL WILL BE COVERED UNDER RCRA. IT HAS NOT BEEN
POSSIBLE TO COMPLETE THIS TASK TO DATE, BUT THE AGENCY EXPECTS TO
INCORPORATE THE TSCA PCB DISPOSAL REGULATIONS INTO THE PHASE II RCRA
REGULATIONS.
SPECIAL DISPOSAL REQUIREMENTS FOR SPECIFIC WASTES WILL, IN THE
FUTURE, NORMALLY BE PROPOSED AS AN AMENDMENT TO THESE RCRA REGULATIONS
BUT MAY BE CO-PROMULGATED UNDER TSCA AUTHORITY.
7. SURFACE MINING CONTROL AND RECLAMATION ACT. THE OFFICE OF
SURFACE MINING (OSM) OF THE DEPARTMENT OF THE INTERIOR ADMINISTERS THE
SURFACE MINING CONTROL AND RECLAMATION ACT (SMCRA). THE PRIMARY PURPOSE
OF SMCRA IS TO PROTECT THE ENVIRONMENT FROM THE EFFECTS OF SURFACE
MINING OF COAL, ALTHOUGH SURFACE DISPOSAL OF UNDERGROUND COAL MINING
WASTE IS ALSO COVERED. THUS THERE IS OVERLAPPING AUTHORITY WITH RCRA.
THE AGENCY IS NEGOTIATING AN AGREEMENT WITH OSM WHEREBY RCRA CONTROL OF
COAL MINING WASTES WOULD BE DEFERRED TO OSM. SUCH AN AGREEMENT WILL BE
BASED ON A DETERMINATION BY EPA THAT THE SMCRA REGULATIONS PROVIDE
CONTROL EQUIVALENT TO THAT WHICH RCRA WOULD IMPOSE. IN ANTICIPATION OF
SUCH AN AGREEMENT, THE AGENCY HAS DEFERRED REGULATION OF COAL MINE WASTE
UNDER RCRA.
8. NATIONAL ENVIRONMENTAL POLICY ACT. THE NATIONAL ENVIRONMENTAL
POLICY ACT (NEPA) REQUIRES THE PREPARATION OF A STATEMENT WHICH
CONSIDERS ENVIRONMENTAL IMPACTS, ALTERNATIVES, AND RESOURCE COMMITMENTS
FOR ANY "MAJOR FEDERAL ACTION SIGNIFICANTLY AFFECTING THE QUALITY OF THE
HUMAN ENVIRONMENT." AT LEAST TEN APPELLATE DECISIONS HAVE CONSIDERED THE
APPLICABILITY OF THAT REQUIREMENT TO EPA. ALLTEN HAVE CONCLUDED THAT
THE AGENCY IS EXEMPT FROM THE REQUIREMENTS OF NEPA BECAUSE ITS OWN
PROCESSES PROVIDE FOR THE "FUNCTIONAL EQUIVALENT" OF THAT ACT. THESE
ANALYSES ARE CONCISELY SUMMARIZED IN STATE OF MARYLAND V. TRAIN, 415 F.
SUPP. 116, 122 (D. MD., 1976):
WHERE FEDERAL REGULATORY ACTION IS CIRCUMSCRIBED BY EXTENSIVE
PROCEDURES, INCLUDING PUBLIC PARTICIPATION, FOR EVALUATING ENVIRONMENTAL
ISSUES AND IS TAKEN BY AN AGENCY WITH RECOGNIZED ENVIRONMENTAL
EXPERTISE, FORMAL ADHERENCE TO THE NEPA REQUIREMENTS IS NOT REQUIRED
UNLESS CONGRESS HAS SPECIFICALLY SO DIRECTED.
THESE SUBTITLE C REGULATIONS HAVE BEEN DEVELOPED THROUGH AN EXTENSIVE
EVALUATION OF ENVIRONMENTAL ISSUES. THIS WAS SPECIFICALLY REQUIRED BY
THE STATUTORY MANDATE TO CONSIDER WHAT MIGHT "BE NECESSARY TO PROTECT
HUMAN HEALTH AND THE ENVIRONMENT," AND BY THE AGENCY'S DEVELOPED
ENVIRONMENTAL EXPERTISE AND CONCERN. THAT EVALUATION UNDERLIES THIS
PREAMBLE AND THE BACKGROUND DOCUMENTS PREPARED TO HELP DEVELOP SPECIFIC
SECTIONS OF THESE REGULATIONS. EXTENSIVE PUBLIC PARTICIPATION AT MANY
PUBLIC MEETINGS, FOLLOWING PRE-PROPOSAL CIRCULATED DRAFTS, AND IN
HUNDREDS OF COMMENTS, HELPED THE AGENCY IN EVALUATING ENVIRONMENTAL
ISSUES RAISED BY THESE REGULATIONS. FEDERAL, STATE, AND LOCAL AGENCIES
ALL PARTICIPATED IN THIS PROCESS. CONGRESS, WELL AWARE OF THE
"FUNCTIONAL EQUIVALENCY" RULE, DID NOT ALTER THAT STATUS IN THE RCRA
STATUTE. THUS THE AGENCY IS NOT BOUND BY NEPA'S REQUIREMENTS. THE
AGENCY HAS, HOWEVER, VOLUNTARILY PREPARED AN ENVIRONMENTAL IMPACT
ANALYSIS WHICH WILL BE AVAILABLE TO THE PUBLIC IN EPA HEADQUARTERS AND
REGIONAL LIBRARIES.
THE PROPOSED REGULATIONS ESTABLISHED A CLASS OF SOLID WASTES FOR
WHICH, IF HAZARDOUS, APPLICATION OF THE FULL SET OF SUBTITLE C STANDARDS
WAS DEFERRED. THESE SOLID WASTES, CALLED "SPECIAL WASTES" (ASHES AND
SLUDGES), PHOSPHATE ROCK MINING AND BENEFICIATION WASTES, URANIUM AND
OTHER MINING WASTES, AND GAS AND OIL DRILLING MUDS AND OIL PRODUCTION
BRINES. FOR HAZARDOUS PORTIONS OF THESE SOLID WASTES, A VERY LIMITED
SUBSET OF THE SUBTITLE C STANDARDS WAS TO BE APPLICABLE PENDING
COMPLETION OF STUDIES DEFINING THE MOST APPROPRIATE WASTE MANAGEMENT
PRACTICES.
WHEN THE PROPOSED RULES WERE ISSUED, THE AGENCY HAD ONLY LIMITED
INFORMATION ON THESE WASTES. HOWEVER, THE INFORMATION THE AGENCY DID
HAVE SUGGESTED THAT APPLICATION OF THE FULL SET OF PROPOSED WASTE
MANAGEMENT STANDARDS WOULD NOT BE APPROPRIATE.
THE ATTRIBUTES OF THESE WASTES WHICH CAUSED THE AGENCY TO REACH THIS
CONCLUSION WERE:
(1) THE TOTAL AMOUNT ANNUAL QUANTITY OF EACH OF THESE WASTES (BOTH
HAZARDOUS AND NON-HAZARDOUS PORTIONS) WAS VERY LARGE. AND INDIVIDUAL
DISPOSAL FACILITIES TENDED TO INVOLVE VERY LARGE PILES OR PONDS. SHOULD
LARGE COLUMES OF THE WASTES BE HAZARDOUS, THE SIZE OF THE FACILITIES
COULD HAVE MADE THE APPLICATION OF SOME OF THE REGULATIONS TECHNICALLY
INFEASIBLE OR UNPRACTICABLE.
(2) ANY PORTIONS OF THE WASTES WHICH DID FAIL THE PROPOSED HAZARDOUS
WASTE CHARACTERISTICS WERE THOUGHT TO BE ON THE MARGINS OF FAILURE.
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EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
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EPA
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REGULATION
THUS THE HAZARDOUS PORTIONS OF THE WASTES APPEARED TO HAVE RELATIVELY
LOW INTRINSIC HAZARD RELATIVE TO OTHER WASTES. HOWEVER, THE AGENCY'S
DATA BASE WAS VERY LIMITED.
(3) THE AGENCY DID NOT BELIEVE THAT IT HAD SUFFICIENT INFORMATION TO
PROPOSE SPECIFIC ALTERNATE WASTE MANAGEMENT REQUIREMENTS WITHOUT
ADDITIONAL STUDY.
THE AGENCY'S PROPOSED APPROACH TO SPECIAL WASTES GENERATED WIDESPREAD
AND DIVERGENT PROTEST FROMBTH THE REGULATED COMMUNITY AND THE PUBLIC.
COMMENTERS GENERALLY OBJECTED EITHER TO THE CONCEPT OF THE SPECIAL WASTE
CATEGORY OR TO THE NEED FOR, OR THE SUFFICIENCY OF, THE LIMITED
STANDARDS PROPOSED FOR THAT CATEGORY. MANY COMMENTERS IDENTIFIED OTHER
SOLID WASTES WHICH THEY URGED ALSO BE DEFINED AS SPECIAL WASTES. THE
MAJOR COMMENTS WERE:
(1) EPA SHOULD NOT REGULATE THESE WASTES AT ALL UNLESS IT CAN
DEMONSTRATE THAT THE WASTES, AS PRESENTLY MANAGED, POSE A SIGNIFICANT
THREAT TO HUMAN HEALTH AND THE ENVIRONMENT.
(2) MANY OF THE LIMITED STANDARDS PROPOSED ARE NOT SUITABLE FOR THESE
WASTES BECAUSE OF THE LOW HAZARD AND LARGE VOLUME OF THE WASTES. THE
REQUIREMENT FOR FACILITY SECURITY WAS A PARTICULAR TARGET OF CRITICISM.
(3) THE STIGMA OF SINGLING OUT THESE WASTES AND REGULATING THE
HAZARDOUS PORTIONS UNDER SUBTITLE C WILL IMPACT NEGATIVELY ON THE
POTENTIAL FOR THEIR REUSE.
(4) THE SINGLING OUT OF ONLY THESE FEW HAZARDOUS WASTES FOR SPECIAL
FAVORED TREATMENT IS INEQUITABLE WHEN THERE ARE OTHER WASTES WITH
SIMILAR CHARACTERISTICS WHICH MUST BEAR THE FULL REGULATORY BURDEN.
COMMENTERS SUGGESTED ABOUT 50 ADDITIONAL WASTES TO BE ADDED TO THE
SPECIAL WASTE CATEGORY.
(5) IF THESE WASTES (OR PORTIONS THEREOF) FAIL THE 3001
CHARACTERISTICS, THEN THEY POSE SIGNIFICANT HAZARDS TO HUMAN HEALTH AND
THE ENVIRONMENT AND THEREFORE SHOULD BE REGULATED LIKE ANY OTHER
HAZARDOUS WASTE.
SEVERAL COMMENTERS RECOMMENDED ALTERNATIVES TO THE SPECIAL WASTE
CATEGORY:
(1) THE AGENCY SHOULD REPLACE THE SPECIAL WASTE CATEGORY WITH A
VARIANCE PROCEDURE INVOLVING PUBLIC PARTICIPATION.
(2) THE STANDARDS FOR A GIVEN WASTE SHOULD BE DETERMINED ON A
CASE-BY-CASE BASIS WITH REQUIREMENTS SPECIFIED IN THE PERMITS FOR EACH
FACILITY AND LOCATION. THE THRUST OF MANY OF THE COMMENTS WAS UNIVERSAL
DISAPPROVAL OF THE SPECIAL WASTE CATEGORY AS PROPOSED.
IN THE COURSE OF ITS CONSIDERATION OF THE COMMENTS, INCLUDING
PROPOSED ADDITIONS TO THE SPECIAL WASTE CATEGORY, EPA MADE TWO
SIGNIFICANT CHANGES IN THE BASIC STRUCTURE AND CONTENT OF THE SUBTITLE C
REGULATIONS. THESE ARE (1) CHANGES IN THE TOXICITY AND CORROSIVITY
HAZARDOUS WASTE CHARACTERISTICS UNDER PART 261 WHICH NARROW THE CATEGORY
OF WASTE WHICH WILL BE BROUGHT INTO SUBTITLE C BY THESE CHARACTERISTICS,
AND (2) THE INCORPORATION OF SIGNIFICANTLY MORE FLEXIBILITY, THROUGH
PHARSING AND STANDARD-SETTING, IN THE PARTS 264 AND 265 REGULATIONS.
THE AGENCY NOW HAS CONCLUDED THAT THESE CHANGES ACCOMPLISH THE
OBJECTIVES OF, AND ELIMINATE THE NEED FOR, A SPECIAL SOLID WASTE
CATEGORY.
1. CHANGES IN THE SECTION 3001 CHARACTERISTICS. IN RESPONSE TO
COMMENTS, THE TOXICITY AND CORROSIVITY HAZARDOUS WASTE CHARACTERISTICS
HAVE BEEN MODIFIED AND NOW INCLUDE MORE DEMANDING CONDITIONS FOR
DEFINING A HAZARDOUS WASTE. IN THE PROPOSED REGULATIONS, A WASTE WOULD
HAVE BEEN CONSIDERED HAZARDOUS UNDER THE TOXICITY CHARACTERISTIC IF THE
EXTRACT FROM THAT WASTE (OBTAINED THROUGH THE DEFINED EXTRACTION
PROCEDURE) CONTAINED ANY HAZARDOUS CONSTITUENTS IN THE PRIMARY DRINKING
WATER STANDARDS (PDWS) AT A CONCENTRATION OF MORE THAN 10 TIMES THE PDWS
LIMITS. IN THE FINAL REGULATIONS, THE CHARACTERISTIC CONCENTRATION
BRINGING A HAZARDOUS WASTE UNDER REGULATION HAS BEEN INCREASED FROM 10
TO 100 TIMES THE PDWS. THUS, WASTE EXTRACTS MUST CONTAIN A TENFOLD
HIGHER CONCENTRATION OF ONE OF THE PDWS SUBSTANCES THAN ORIGINALLY
PROPOSED IN ORDER FOR THE WASTE NOW TO BE BROUGHT UNDER SUBTITLE C
CONTROL BY THAT CHARACTERISTIC. THE REASONS FOR THE CHANGE IN THIS
CHARACTERISTIC ARE EXPLAINED IN THE TOXICITY CHARACTERISTIC BACKGROUND
DOCUMENT.
THE UPPER AND LOWER LIMITS OF PH WHICH DEFINE A HAZARDOUS WASTE ALSO
HAVE BEEN REVISED IN RESPONSE TO COMMENTS SO THAT THE CORROSIVITY
CHARACTERISTIC NOW IS MORE DEMANDING IN SIGNALING A WASTE AS HAZARDOUS.
THE BASIS FOR THIS CHANGE IS EXPLAINED IN THE CORROSIVITY CHARACTERISTIC
BACKGROUND DOCUMENT.
THESE CHANGES HAVE HAD TWO IMPORTANT EFFECTS ON THE SPECIAL WASTE
CONCEPT. ONE IS THAT A MUCH SMALLER PORTION OF THE PROPOSED SPECIAL
SOLID WASTES ARE EXPECTED TO FAIL THE CHARACTERISTICS AND BE SUBJECT TO
CONTROL AS HAZARDOUS WASTES. THE DATA AVAILABLE TO THE AGENCY INDICATE
THAT MOST OF THE SPECIAL WASTES THAT WOULD HAVE ENTERED THE CONTROL
SYSTEM WOULD HAVE DONE SO DUE TO TOXIC EXTRACTS BETWEEN 10 AND 100 TIMES
THE PDWS. THUS, THE PROBABILITY THAT LARGE VOLUMES OF THE PROPOSED
SPECIAL SOLID WASTES WILL BE HAZARDOUS NOW APPEARS REMOTE. SECOND,
THOSE PORTIONS OF THE PROPOSED SPECIAL SOLID WASTES WHICH DO FAIL THE
CHARACTERISTICS CAN NO LONGER BE LABELED "LOW HAZARD" WASTES. THUS THE
CONCERN OVER THE INAPPLICABILITY OF THE PROPOSED REGULATIONS TO
HAZARDOUS SPECIAL WASTES DUE TO THE POTENTIALLY LARGE VOLUME AND LOW
LEVEL OF HAZARD OF THESE WASTES IS NOT A VALID CONCERN IN THE FINAL
REGULATIONS.
2. PHASING AND INCREASED FLEXIBILITY IN PARTS 264 AND 265. TO THE
EXTENT THAT SPECIAL ACCOMMODATION FOR ANY OF THE HAZARDOUS PORTIONS OF
THESE WASTES MAY STILL BE NEEDED, THE SECOND MAJOR REGULATORY CHANGE,
I.E., THE INCORPORATION OF MORE FLEXIBILITY IN THE HAZARDOUS WASTE
MANAGEMENT REQUIREMENTS THROUGH REGULATORY CHANGES AND PHASING OF
REQUIREMENTS, WILL ACCOMPLISH ESSENTIALLY THE SAME RESULT AS THE
PROPOSED SPECIAL SOLID WASTE CATEGORY. THIS IS TRUE FOR THE HAZARDOUS
PORTIONS OF THOSE WASTES PROPOSED AS SPECIAL SOLID WASTES AS WELL AS FOR
ALL OF THE WASTES THAT COMMENTERS SUGGESTED SHOULD BE SPECIAL SOLID
WASTES.
THE NEW THREE-STAGE REGULATORY PROCESS ITSELF PROVIDES THE SAME
OPPORTUNITY FOR PHASED REGULATION AS THE CREATION OF THE SPECIAL WASTE
CATEGORY. INITIAL REGULATIONS UNDER PHASE I STANDARDS INCLUDE
ADMINISTRATIVE AND LIMITED TECHNICAL REQUIREMENTS WHICH PROVIDE A BASIC
LEVEL OF ENVIRONMENTAL PROTECTION SIMILAR TO THAT PROVIDED IN THE
LIMITED STANDARDS PROPOSED FOR THE HAZARDOUS PORTIONS OF SPECIAL WASTES.
THE PLANS FOR PHASE II OF THE REGULATIONS WILL ALLOW HAZARDOUS WASTE
FACILITIES TO BE PERMITTED LARGELY ON THE BASIS OF PERFORMANCE STANDARDS
COUPLED WITH THE "BEST ENGINEERING JUDGMENT" OF THE REGIONAL
ADMINISTRATOR. THIS FLEXIBILITY WILL ALLOW THE PERMIT WRITER TO
CONSIDER SITE- AND WASTE-SPECIFIC FACTORS IN DETERMINING SPECIFIC DESIGN
AND OPERATING PERMIT REQUIREMENTS. THUS, UNNECESSARY OR OVERLY
STRINGENT REQUIREMENTS SHOULD NOT BE FORCED UPON ANY HAZARDOUS WASTES BY
THE REGULATIONS. TO THE EXTENT THE AGENCY BECOMES AWARE OF THE
INAPPLICABILITY OF CERTAIN REQUIREMENTS ON A SITE- OR WASTE-SPECIFIC
BASIS, IT IS COMMITTED TO MAKING NEEDED REGULATORY CHANGES AS QUICKLY AS
POSSIBLE. IN ADDITION, THE AGENCY PLANS TO GATHER FURTHER INFORMATION
BOTH ON THE PROPOSED SPECIAL SOLID WASTES AND ON AT LEAST SOME OF THE
WASTES SUGGESTED BY COMMENTERS AS SPECIAL SOLID WASTES, AND WHERE
NEEDED, DEVELOP TECHNICAL STANDARDS OR GUIDANCE SPECIFIC TO THESE WATERS
IN THE PHASE III REGULATIONS AND THEREAFTER. ADDITIONAL DATA AND
INFORMATION ON THESE, AS WELL AS THE OTHER SOLID AND HAZARDOUS WASTES
THE AGENCY IS STUDYING ALSO WILL BE USEFUL IN ISSUING BEST ENGINEERING
JUDGMENT PERMITS UNDER THE PHASE II SECTION 3004 REGULATIONS.
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EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 023 OF 106
COSTLE D M ADMINISTRATOR
EPA
113387
REGULATION
IN CONSIDERATION OF ALL OF THE ABOVE FACTORS, THE AGENCY HAS
CONCLUDED THAT THE SPECIAL SOLID WASTE CATEGORY IS NO LONGER NECESSARY.
IT HAS BEEN ELIMINATED IN THESE FINAL PHASE I REGULATIONS. THOSE
PORTIONS OF THE SIX PROPOSED SPECIAL WASTES WHICH ARE DETERMINED BY THE
CHARACTERISTICS TO BE HAZARDOUS WILL BE SUBJECT TO THE APPLICABLE PART
264 AND 265 REGULATIONS.
THE AGENCY IS, HOWEVER, TEMPORARILY DELAYING IMPOSITION OF THE
REGULATIONS FOR TWO OF THE WASTES EPA ORIGINALLY PROPOSED AS SPECIAL
SOLID WASTES, I.E., OIL AND GAS DRILLING MUDS AND OIL PRODUCTION BRINES,
AND UTILITY WASTE. THIS TEMPORARY DEFERRAL IS IN RESPONSE TO ACTION BY
CONGRESS TO EXEMPT THESE WASTES FROM MOST SUBTITLE C REGULATION FOR A
LIMITED TIME PENDING COMPLETION OF CERTAIN EPA STUDIES. CONGRESS HAS
NOT YET COMPLETED ACTION ON THE AMENDMENTS WHICH WOULD MANDATE THIS
DEFERRAL. HOWEVER, BILLS HAVE BEEN PASSED BOTH IN THE HOUSE AND SENATE,
INDICATING STRONG CONGRESSIONAL INTENT TO MANDATE A DEFERRAL OF
REGULATIONS FOR THESE TWO PROPOSED SPECIAL SOLID WASTES.
IN THE ABSENCE OF A REGULATORY DEFERRAL BY EPA, THE HAZARDOUS
PORTIONS OF THESE WASTES WOUOD BE SUBJECT TO THE REQUIREMENTS OF THE
REGULATION ON THEIR EFFECTIVE DATE. IN ORDER TO BE IN COMPLIANCE BY THE
EFFECTIVE DATE, THE FACILITIES HANDLING THESE WASTES WOULD NEED TO TAKE
CERTAIN ACTIONS SOON, INVOLVING POSSIBLY SIGNIFICANT EXPENDITURES, WHICH
COULD THEN BE HALTED IN MID-STREAM BY FINAL CONGRESSIONAL ACTION. IN
EPA'S VIEW, SUCH A SITUATION WOULD BE INEFFICIENT AND COUNTERPRODUCTIVE.
THEREFORE, PART 261 DEFERS THE EFFECTIVE DATE OF THE REGULATIONS FOR
THE HAZARDOUS PORTIONS OF THE PROPOSED OIL AND GAS AND UTILITY SPECIAL
WASTES. THE OTHER PROPOSED SPECIAL SOLID WASTES ARE THE SUBJECT OF
BILLS WHICH HAVE PASSED EITHER THE HOUSE OR THE SENATE, BUT ONLY THE OIL
AND GAS AND UTILITY WASTE DEFERRALS ARE CONTAINED IN BOTH THE HOUSE AND
SENATE BILLS. EPA IS NOT PRESUMING THE OUTCOME OF THE ADDITIONAL
PROPOSED DEFERRALS, BUT WILL, WHERE NECESSARY, AMEND PART 261
REGULATIONS AFTER THE CURRENTLY PROPOSED AMENDMENTS TO RCRA ARE FINALLY
ACTED ON BY CONGRESS.
SUBPARTS A OF PARTS 264 AND 265 CONTAIN REQUIREMENTS UNDER THREE
GENERAL HEADINGS. THE FIRST IS "PURPOSE, SCOPE, AND APPLICABILITY"
(SECTIONS 264.1 AND 265.1). THESE PROVISIONS EXPLAIN WHO IS SUBJECT TO
THE REGULATIONS IN THE PART, AND WHETHER THERE ARE ANY CIRCUMSTANCES
UNDER WHICH A PERSON IS EXCLUDED FROM COVERAGE BY THE REGULATIONS OR
SUBJECT ONLY TO LIMITED REQUIREMENTS. THE SECOND SECTION IN PART 264
(SECTION 264.3) EXPLAINS THE RELATIONSHIP OF PART 264 REQUIREMENTS
(WHICH EPA HAS TERMED "GENERAL STANDARDS" OR "PERMITTING STANDARDS") TO
PART 265 REQUIREMENTS (THE "INTENTION STATUS STANDARDS"). SECTION
265.1(B) IS THE COUNTERPART OF SECTION 264.3. IT EXPLAINS THAT THE PART
265 REGULATIONS, RATHER THAN THE PART 264 REGULATIONS, ARE APPLICABLE TO
AN OWNER OR OPERATOR WHO HAS FULLY COMPLIED WITH THE REQUIREMENTS FOR
INTERIM STATUS UNDER SECTION 3005(E) OF RCRA, AND WHO HAS NOT HAD FINAL
ADMINISTRATIVE ACTION TAKEN ON HIS PERMIT APPLICATION. SECTIONS 264.4
AND 265.4 NOTIFY PEOPLE WHO HANDLE HAZARDOUS WASTE THAT IMMINENT HAZARD
ACTIONS MAY BE BROUGHT NOTWITHSTANDING ANY OTHER PROVISIONS OF THE
REGULATIONS. EACH OF THESE SECTIONS IS DISCUSSED IN DETAIL BELOW.
1. PURPOSE, SCOPE, AND APPLICABILITY. THE CONTENT OF THIS SECTION
HAS CHANGED SUBSTANTIALLY FROM THE PROPOSAL. THIS PREAMBLE DISCUSSION
EXPLAINS THE FINAL REQUIREMENTS, AND, IN ADDITION, CONTAINS A TABLE
SHOWING THE CORRELATION OF EACH OF THE PARAGRAPHS IN PROPOSED SECTION
250.40 WITH THE FINAL REGULATIONS.
PARAGRAPHS (A) OF SECTIONS 264.1 AND 265.1 SET FORTH THE PURPOSE OF
THE SECTION 3004 REGULATIONS AND ARE SELF-EXPLANATORY.
PARAGRAPH (B) OF SECTIONS 264.1 AND 265.1 STATE THE GENERAL
APPLICABILITY OF THE REGULATINS, WHICH IS TO ALL OWNERS AND OPERATORS OF
FACILITIES THAT TREAT, STORE, OR DISPOSE OF HAZARDOUS WASTE (TSDFS),
EXCEPT AS SPECIFICALLY PROVIDED OTHERWISE IN THE PARTS 264, 265, OR 261
REGULATIONS.
PARAGRAPHS (C) THROUGH (G) OF SECTION 264.1 AND PARAGRAPH (C) IN
SECTION 265.1 DELIMIT THE GENERAL APPLICABILITY OF THE REGULATIONS. IN
ADDITION, EACH SUBPART IN PARTS 264 AND 265 CONTAINS AN APPLICABILITY
SECTION. SOME OF THESE SPECIAL APPLICABILITY SECTIONS NOW MERELY REFER
BACK TO THE REQUIREMENTS IN SECTIONS 264.1 AND 265.1, BUT SUBPARTS F
THROUGH R OF PART 265 CONTAIN APPLICABILITY SECTIONS WHICH LIMIT THE
APPLICABILITY OF THE REQUIREMENTS IN THOSE SECTIONS TO CERTAIN KINDS OF
FACILITIES, THE REQUIREMENTS IN SUBPART N OF PART 265, FOR EXAMPLE,
APPLY ONLY TO OWNERS AND OPERATORS OF FACILITIES WHICH DISPOSE OF
HAZARDOUS WASTE IN LANDFILLS (WHICH INCLUDE WASTE PILES USED AS DISPOSAL
FACILITIES).
A. OCEAN DISPOSAL. PARAGRAPH (C) OF SECTION 264.1 STATES THAT THE
REQUIREMENTS OF PART 264 APPLY TO A PERSON DISPOSING OF HAZARDOUS WASTE
BY MEANS OF OCEAN DISPOSAL SUBJECT TO A PERMIT ISSUED UNDER THE MARINE
PROTECTION, RESEARCH, AND SANCTUARIES ACT (MPRSA) ONLY TO THE EXTENT
THEY ARE INCLUDED IN A RCRA PERMIT BY RULE GRANTED TO SUCH A PERSON
UNDER PART 122 (I.E., THE RCRA SECTION 3005 REGULATIONS EXPLAINS THE
BASIS OF EPA'S DECISION TO ISSUE SUCH PERSONS RCRA PERMITS BY RULE.
BASICALLY, EPA HAS FOUND THAT COMPLIANCE WITH AN OCEAN DUMPING PERMIT
ISSUED UNDER 40 CFR PART 220 (OCEAN DUMPING UNDER MPRSA) PROVIDES THE
HUMAN HEALTH AND ENVIRONMENTAL PROTECTION MANDATED BY RCRA. PERSONS
CARRYING OUT SUCH DISPOSAL, HOWEVER, MUST COMPLY WITH CERTAIN
RECORDKEEPING AND REPORTING REQUIREMENTS WHICH ARE NECESSARY FOR EPA TO
ENSURE THAT THE "CRADLE-TO-GRAVE" MANAGEMENT SYSTEM FOR HAZARDOUS WASTE
ESTABLISHED IN RCRA TRACKS ALL MANIFESTED HAZARDOUS WASTE.
PARAGRAPH (C)(1) OF SECTION 265.1 EXCLUDES PERSONS DISPOSING OF WASTE
BY OCEAN DISPOSAL SUBJECT TO A MPRSA PERMIT FROM COVERAGE UNDER PART 265
(INTERIM STATUS STANDARDS). THE PART 265 REQUIREMENTS NEVER APPLY TO
SUCH PEOPLE BECAUSE ON THE EFFECTIVE DATE OF RCRA REGULATIONS PERSONS
DISPOSING OF HAZARDOUS WASTE IN ACCORDANCE WITH MPRSA PERMITS
AUTOMATICALLY RECEIVE RCRA PERMITS BY RULE WHICH REQUIRE THEM TO COMPLY
WITH SELECTED PART 264 REQUIREMENTS.
TREATMENT OR STORAGE OF HAZARDOUS WASTE BEFORE IT IS LOADED ONTO AN
OCEAN VESSEL FOR INCINERATION OR DISPOSAL AT SEA IS COVERED BY THE PARTS
264 AND 265 REGULATIONS BECAUSE MPRSA OFFERS NO REGULATORY SCHEME
COMPARABLE TO RCRA FOR SUCH FACILITIES.
B. UNDERGROUND INJECTION. COVERAGE UNDER RCRA OF PERSONS DISPOSING
OF HAZARDOUS WASTE BY UNDERGROUND INJECTION IS COMPLICATED BECAUSE,
DEPENDING ON THE CIRCUMSTANCES, SUCH PERSONS ARE SUBJECT TO REGULATION
(1) BY RCRA PART 265 STANDARDS, (2) BY RCRA PART 264 STANDARDS, (3) BY
STATE STANDARDS EFFECTIVE UNDER AN AUTHORIZED HAZARDOUS WASTE PROGRAM
(UNDER SECTION 3006 OF RCRA, 40 CFR PART 123, SUBPARTS A, B, AND F), (4)
BY STATE STANDARDS EFFECTIVE UNDER AN APPROVED UNDERGROUND INJECTION
CONTROL PROGRAM (UNDER THE SAFE DRINKING WATER ACT (SDWA), 40 CFR PART
123, SUBPARTS A AND C), OR (5) BY FEDERAL STANDARDS IN A STATE WITH AN
EPA PROMULGATED UNDERGROUND INJECTION CONTROL PROGRAM UNDER SDWA. THE
PREAMBLE TO THE PART 122, SUBPART C, REGULATIONS EXPLAINS THESE VARIOUS
REGULATORY SCHEMES AND THEIR STATUTORY UNDERPINNINGS. BECAUSE SECTION
3004 RCRA REQUIRES THAT ALL OWNERS AND OPERATORS OF FACILITIES WHICH
TREAT, STORE, OR DISPOSE OF HAZARDOUS WASTE MUST HAVE A RCRA PERMIT,
THESE SECTION 3004 (PARTS 264 AND 265) REGULATIONS AND THE SECTION 3005
(PARTS 122 AND 124) REGULATIONS SO PROVIDE.
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FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 024 OF 106
COSTLE D M ADMINISTRATOR
EPA
113388
REGULATION
PART 265 STANDARDS (AS STATED IN SECTION 265.1(C)(2) DO NOT APPLY TO
PERSONS DISPOSING OF HAZARDOUS WASTE BY MEANS OF UNDERGROUND INJECTION
SUBJECT TO A PERMIT ISSUED UNDER AN UNDERGROUND INJECTION CONTROL
PROGRAM APPROVED OR PROMULGATED UNDER THE SAFE DRINKING WATER ACT. THAT
MEANS THAT THE PART 265 INTERIM STATUS REGULATIONS DO APPLY TO PERSONS
DISPOSING OF HAZARDOUS WASTE BY UNDERGROUND INJECTION WHO HAVE MET THE
SECTION 3005(E) REQUIREMENTS FOR INTERIM STATUS AND WHO EITHER (1) DO
NOT HAVE SUCH A DSWA UIC PERMIT, OR (2) DO NOT HAVE A RCRA PERMIT AND
ARE INJECTING HAZARDOUS WASTE UNDERGROUND IN A STATE WITHOUT AN
AUTHORIZED RCRA PROGRAM THAT COVERS UNDERGROUND INJECTION.
PART 264 REQUIREMENTS (SEE SECTION 264.1(D) APPLY TO PEOPLE DISPOSIN
OF HAZARDOUS WASTE WITH PERMITS ISSUED UNDER AN UIC PROGRAM APPROVED OR
PROMULGATED UNDER SDWA ONLY TO THE EXTENT THAT THEY ARE INCLUDED IN
SECTION 122.45 (REQUIREMENTS FOR UIC PERMITS FOR WELLS INJECTING
HAZARDOUS WASTES). THE SAME REASONING THAT APPLIES TO HAZARDOUS WASTE
DISPOSAL UNDER AN MPRSA PERMIT APPLIES TO SDWA UIC PERMITS. ALTHOUGH
ALL OF THE TECHNICAL REQUIREMENTS FOR WASTE DISPOSAL BY MEANS OF
UNDERGROUND INJECTION HAVE NOT YET BEEN PROMULGATED UNDER THE SAFE
DRINKING WATER ACT, EPA IS INCLUDING THIS SECTION TO STATE ITS INTENTION
TO ISSUE A RCRA PERMIT BY RULE TO PERSONS WHO MEET SDWA REQUIREMENTS.
EPA WILL INSURE THAT THE COMBINATION OF UIC TECHNICAL REQUIREMENTS, AND
SECTION 122.45, WHICH INCORPORATE APPROPRIATE REQUIREMENTS FROM PART 264
FOR UNDERGROUND INJECTION OF HAZARDOUS WASTE, MEETS RCRA'S HUMAN HEALTH
AND ENVIRONMENTAL PROTECTION MANDATE.
THE IMPLICATION OF SECTION 264.1(D) IS THAT UNTIL AN UNDERGROUND
INJECTION FACILITY RECEIVED A SDWA UIC PERMIT, IT IS SUBJECT TO RCRA
INTERIM STATUS STANDARDS (IF THE OWNER OR OPERATOR HAS MET THE
REQUIREMENTS OF SECTION 3005(E) OF RCRA) OR MUST HAVE A RCRA PERMIT.
EPA INTENDS, AS PART OF ITS PHASE II SECTION 3004 REGULATIONS TO
PROMULGATE TECHNICAL REQUIREMENTS THAT CAN BE USED TO ISSUE INTERIM (TWO
YEAR) PERMITS TO CLASS I (AND PERHAPS CLASS IV) UNDERGROUND INJECTION
WELLS. UNTIL THEN, OR UNTIL PERMITTED BY A SDWA UIC PROGRAM, ALL
HAZARDOUS WASTE DISPOSAL BY UNDERGROUND INJECTION IS GOVERNED BY THE
RCRA INTERIM STATUS STANDARDS. SEE THE DISCUSSION OF THE SUBPART R
STANDARDS IN THIS PREAMBLE FOR AN EXPLANATION OF THOSE REQUIREMENTS.
EPA BELIEVES THAT THIS SYSTEM WILL ENSURE THAT UNDERGROUND INJECTION OF
HAZARDOUS WASTE IS CARRIED OUT IN ACCORDANCE WITH THE PURPOSE AND
REQUIREMENTS OF BOTH RCRA AND SDWA, WHILE AVOIDING UNNECESSARY DUAL
REGULATION. FOR A MORE DETAILED DISCUSSION OF THIS ISSUE, SEE THE
PREAMBLE TO PART 122, SUBPART C.
AS WITH ON-SHORE FACILITIES ASSOCIATED WITH OCEAN DISPOSAL,
ABOVE-GROUND TREATMENT OR STORAGE OF HAZARDOUS WASTE ASSOCIATED WITH AN
UNDERGROUND INJECTION FACILITY IS COVERED BY PARTS 264 AND 265
REGULATIONS. THE SAFE DRINKING WATER ACT IS DESIGNED TO PROTECT
UNDERGROUND SOURCES OF DRINKING WATER AND DOES NOT HAVE AUTHORITY
COMPARABLE TO RCRA'S TO ENSURE HUMAN HEALTH AND ENVIRONMENTAL PROTECTION
FROM ALL ASPECTS OF POTENTIAL POLLUTION (AIR, LAND, SURFACE, AND GROUND
WATER) FROM ABOVE-GROUND FACILITIES THAT TREAT, STORE, OR DISPOSE OF
HAZARDOUS WASTE.
C. POTWS. AS DISCUSSED ABOVE IN THE SECTION OF THIS PREAMBLE ON
"NPDES PERMITTED FACILITIES," THE REGULATORY DEFINITION OF SOLID WASTE
EXCLUDES HAZARDOUS WASTE THAT IS MIXED WITH DOMESTIC SEWAGE AND PASSES
THROUGH A SEWER SYSTEM TO A PUBLICLY-OWNED TREATMENT WORKS. THAT
EXCLUSION IS BASED ON THE LEGISLATIVE HISTORY OF THE SOLID WASTE
DISPOSAL ACT. AS DISCUSSED IN THE PART 122 PREAMBLE, EPA BELIEVES THAT
THE REASONING WHICH LED THE AGENCY TO EXEMPT SUCH HAZARDOUS WASTE MIXED
WITH DOMESTIC SEWAGE FROM THE DEFINITION OF SOLID WASTE, ALSO APPLIES TO
THE DECISION OF WHAT SORT OF RCRA REQUIREMENTS TO IMPOSE ON POTWS WHICH
RECEIVE HAZARDOUS WASTE WHICH HAS NOT LOST ITS CHARACTER AS SOLID WASTE
(I.E., HAZARDOUS WASTE WHICH IS DISCHARGED TO THE POTW BY TRUCK OR RAIL,
OR THROUGH A PIPE WHICH CARRIES ONLY INDUSTRIAL WASTE).
EPA WILL ISSUE POTWS WHICH RECEIVE HAZARDOUS WASTE A PERMIT BY RULE.
THE AGENCY'S REASONING IS THAT THE WASTES WILL BE PLACED IN A FACILITY
SUBJECT TO AN EXTENSIVE SET OF FEDERAL REGULATORY AND SUBSIDY PROVISIONS
THAT SHOULD BE SUFFICIENT TO DEAL WITH ANY HAZARDOUS WASTE PROBLEMS. IN
ADDITION, THIS EXEMPTION FOR POTWS FROM MOST OF THE SECTION 3004
REQUIREMENTS IS BASED ON CONGRESSIONAL INTENT THAT EPA AVOID DISRUPTION
OF THE EXISTING PATTERNS OF FUNDING AND OPERATION OF SUCH FACILITIES.
NOTE, HOWEVER, THAT IN ORDER FOR A POTW TO QUALIFY FOR THIS PERMIT BY
RULE, IT MUST HAVE AND BE IN COMPLIANCE WITH AN NPDES PERMIT, MUST
COMPLY WITH CERTAIN OF THE RCRA RECORDKEEPING AND REPORTING
REQUIREMENTS, AND MUST MEET ALL APPLICABLE FEDERAL, STATE, AND LOCAL
PRETREATMENT REQUIREMENTS (SUCH REQUIREMENTS ARE APPLICABLE TO TRUCK OR
RAIL SHIPMENTS OF HAZARDOUS WASTE JUST AS IF THEY HAD COME THROUGH A
SEWER, PIPE, OR SIMILAR CONVEYANCE).
PARAGRAPH (C)(3) OF SECTION 265.1 EXCLUDES THE OWNER AND OPERATOR OF
A POTW THAT THREATS, STORES, OR DISPOSES OF HAZARDOUS WASTE FROM
COVERAGE BY PART 265. PARAGRAPH (E) OF SECTION 264.1 PROVIDES THAT THE
REQUIREMENTS OF PART 264 APPLY TO SUCH OWNERS AND OPERATORS ONLY WHEN
INCLUDED IN A RCRA PERMIT BY RULE. THIS SCHEME IS THE SAME AS THAT
DESCRIBED ABOVE FOR OCEAN DISPOSAL IN ACCORDANCE WITH AN MPRSA PERMIT.
THE INTERIM STATUS STANDARDS NEVER APPLY TO POTWS BECAUSE OWNERS AND
OPERATORS OF POTWS ARE REQUIRED TO COMPLY WITH THE PART 264 REQUIREMENTS
WHICH ARE INCLUDED IN THEIR PERMIT BY RULE.
D. AUTHORIZED STATE RCRA PROGRAMS. PARAGRAPH (C)(4) OF SECTION
265.1 PROVIDES THAT THE PART 265 REQUIREMENTS DO NOT APPLY TO PERSONS
TREATING, STORING, OR DISPOSING OF HAZARDOUS WASTE IN A STATE WITH A
RCRA HAZARDOUS WASTE PROGRAM AUTHORIZED UNDER SUBPARTS A AND B (I.E.,
FULL AUTHORIZATION), OR SUBPART F (I.E., INTERIM AUTHORIZATION) OF 40
CFR PART 123. THIS EXCLUSION IS PROVIDED IN THE REGULATIONS BECAUSE
SECTION 3006 OF RCRA STATES THAT AUTHORIZED STATE PROGRAMS ARE TO
OPERATE IN LIEU OF THE FEDERAL PROGRAM. THUS FEDERAL REQUIREMENTS, AS A
GENERAL RULE, DO NOT APPLY IN STATES WITH AUTHORIZED RCRA PROGRAMS. THE
EXCEPTION TO THIS RULE IS A STATE WITH PHASE I, BUT NOT PHASE II INTERIM
AUTHORIZATION AS DISCUSSED BELOW AND IN THE PREAMBLE TO PART 123,
SUBPART F, PURSUANT TO SECTION 3006 OF RCRA AND PART 123 REQUIREMENTS, A
STATE PROGRAM MUST BE "SUBSTANTIALLY EQUIVALENT" TO THE FEDERAL PROGRAM
TO RECEIVE INTERIM AUTHORIZATION; A STATE PROGRAM MUST BE "EQUIVALENT,
CONSISTENT, AND PROVIDE FOR ADEQUATE ENFORCEMENT" TO RECEIVE FULL
AUTHORIZATION.
PARAGRAPH (F) OF SECTION 264.1 ESTABLISHES THE SAME SORT OF GENERAL
INAPPLICABILITY OF PART 264 REQUIREMENTS AS IS ESTABLISHED FOR PART 265
REQUIREMENTS, WITH ONE EXCEPTION. THE ONE EXCEPTION IS THAT PART 264
REQUIREMENTS DO APPLY IN STATES WHICH HAVE ONLY PHASE I INTERIM
AUTHORIZATION. IN SUCH STATES, EPA RETAINS THE AUTHORITY TO ISSUE
HAZARDOUS WASTE PERMITS BECAUSE THE STATE PROGRAM DOES NOT YET HAVE THAT
AUTHORITY. SUCH A LACK OF STATE PERMITTING AUTHORITY COULD LAST IN A
STATE FOR A MAXIMUM OF ABOUT NINE MONTHS. AS NOTED IN THE PART 123
PREAMBLE DISCUSSION OF THIS ISSUE, EPA WOULD REARELY EXERCISE THIS
AUTHORITY, BUT IF THE AGENCY FAILED TO RETAIN SUCH AUTHORITY, EPA WOULD
BE IN EFFECT PROHIBITING THE PERMITTING OF ANY FACILITIES IN SUCH A
STATE DURING THAT PERIOD. BECAUSE OF SECTION 3005 OF RCRA, NO NEW
FACILITIES COULD BEGIN OPERATIONS. BECUASE NEWER FACILITIES, SUBJECT TO
FULL FEDERAL REQUIREMENTS, GENERALLY WILL BE THE BETTER FACILITIES, SUCH
A RESULT CERTAINLY SEEMS ANAMALOUS, PARTICULARLY IN LIGHT OF THE CURRENT
SHORTFALL OF ENVIRONMENTALLY ACCEPTABLE HAZARDOUS WASTE MANAGEMENT
FACILITIES IN THE UNITED STATES.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 025 OF 106
COSTLE D M ADMINISTRATOR
EPA
113389
REGULATION
THERE IS ONE ADDITIONAL ASPECT TO THE APPLICABILITY OF PARTS 264 AND
265 IN STATES WIHT AUTHORIZED RCRA PROGRAMS. THAT IS THE REGULATION OF
HAZARDOUS WASTE DISPOSAL BY UNDERGROUND INJECTION IN SUCH STATES. AS
MENTIONED BRIEFLY ABOVE, AND AS DISCUSSED IN THE PART 123 PREAMBLE,
STATES SEEKING AUGHORIZATION TO OPERATED RCRA HAZARDOUS WASTE PROGRAMS
IN LIEU OF THE FEDERAL PROGRAM WILL HAVE AN OPTION TO INCLUDE COVERAGE
OF UNDERGROUND INJECTION FACILITIES. IF A STATE WHICH RECEIVES INTERIM
OR FULL AUTHORIZATION CHOOSES NOT TO REGULATE UNDERGROUND INJECTION
UNDER ITS RCRA PROGRAM (PRIOR TO THE OPPORTUNITY TO RECEIVE APPROVAL FOR
A STATE UIC PROGRAM UNDER THE SAFE DRINKING WATER ACT), THE PARTS 264
AND 265 REQUIREMENTS WILL REMAIN EFFECTIVE FOR UNDERGROUND INJECTION
FACILITIES IN THAT STATE. EPA REALIZES SUCH A RESULT WILL SUBJECT
UNDERGROUND INJECTION FACILITY OWNERS AND OPERATORS TO REGULATION BY
BOTH STATE AND FEDERAL AGENCIES. BUT SEES NO REAL ALTERNATIVE. EPA
DOES NOT BELIEVE THAT IT SHOULD MANDATE THAT STATE RCRA PROGRAMS INCLUDE
COVERAGE OF UNDERGROUND INJECTION FACILITIES. NO SUCH REQUIREMENT WAS
PROPOSED WITH THE STATE AUTHORIZATION REQUIREMENTS, AND SUCH A DECISION
COULD DISRUPT THE PROGRESS MANY STATES HAVE BEEN MAKING TOWARDS
DEVELOPING ALL OF THE LEGILATIVE AND REGULATORY AUTHORITY NECESSARY TO
RECEIVE INTERIM OR FULL AUTHORIZATION UNDER RCRA. ON THE OTHER HAND, IT
SEEMS FAIR AND REASONABLE TO GIVE STATES THE CHANCE TO INCLUDE SUCH
FACILITIES IN THEIR PROGRAMS BECAUSE IF A STATE HAS SUFFICIENT
AUTHORITY, A FACILITY OWNER OR OPERATOR THEN NEED DEAL ONLY WITH THE
STATE.
E. PART 261 EXCLUSIONS, INCLUDING SMALL QUANTITIES OF HAZARDOUS
WASTE, AND RECYCLED OR RE-USED HAZARDOUS WASTE. SECTIONS 264.1 AND
265.1 BOTH PROVIDE THAT PARTS 264 AND 265 ARE NOT APPLICABLE IF
SPECIFICALLY PROVIDED OTHERWISE IN 40 CFR PART 261. PART 261 COVERS THE
IDENTIFICATION AND LISTING OF THOSE SOLID WASTES WHICH MUST BE HANDLED
AS HAZARDOUS WASTE ACCORDING TO THE STANDARDS ESTABLISHED BY EPA UNDER
SECTIONS 3002 THROUGH 3005.
AMONG OTHER THINGS, PART 261 CONTAINS REGULATORY DEFINITIONS OF SOLID
WASTE AND HAZARDOUS WASTE, A LIST OF MATERIALS WHICH ARE EXCLUDED FROM
ALL OR A PORTION OF CERTAIN SUBTITLE C REQUIREMENTS, AND ESTABLISHES
SPECIAL REQUIREMENTS FOR GENERATORS OF SMALL QUANTITIES OF HAZARDOUS
WASTE. THUS EPA BELIEVES IT IS APPROPRIATE FOR THE PARTS 264 AND 265
REQUIREMENTS TO REFER PEOPLE TO THE PART 261 REGULATIONS WHICH DESIGNATE
WHICH WASTES ARE WITHIN SUBTITLE C CONTROL, WHEN THOSE WASTES MUST BEGIN
TO BE MANAGED IN ACCORDANCE WITH PART 262 THROUGH 265 STANDARDS, AND
WHEN A HAZARDOUS WASTE CEASES TO BE A HAZARDOUS WASTE. THE EXCLUSIONS
IN SECTION 261.4 (I.E., THE STATEMENTS OF WHICH MATERIALS ARE NOT SOLID
WASTES AND WHICH SOLID WASTES ARE NOT HAZARDOUS WASTES) ARE NOT INCLUDED
IN THE PARTS 264 AND 265 REGULATIONS. OWNERS AND OPERATORS OF
TREATMENT, STORAGE, AND DISPOSAL FACILITIES SHOULD READ THE PART 261
REGULATIONS TO DETERMINE TO WHAT EXTENT THE WASTES THEY HANDLE ARE
SUBJECT TO THE PARTS 264 AND 264 REGULATIONS.
EPA HAS, IN SECTIONS 264.1(G)(1) AND 261.1(C)(5), EXCLUDED FROM
REGULATION UNDER PARTS 264 AND 265 FACILITIES PERMITTED, LICENSED, OR
REGISTERED BY A STATE TO MANAGE MUNICIPAL OR INDUSTRIAL SOLID WASTE, IF
THE ONLY HAZARDOUS WASTE THE FACILITY HANDLES IS EXCLUDED FROM
REGULATION UNDER THE SMALL QUANTITY PROVISIONS OF SECTION 261.5 SECTION
261.5, AMONG OTHER THINGS, EXCLUDES CERTAIN SMALL QUANTITIES OF
HAZARDOUS WASTE FROM REGULATION UNDER PARTS 262 THROUGH 265, IF THE
GENERATOR OF THOSE SMALL QUANTITIES ENSURES DELIVERY OF THEM TO A
FACILITY WHICH HAS (1)INTERIM STATUS, (2) A RCRA PERMIT, OR (3) IS
PERMITTED, LICENSED, OR REGISTERED BY A STATE TO MANAGE MUNICIPAL OR
INDUSTRIAL SOLID WASTE. TO AVOID THE CONFUSION THAT COULD RESULT IF
THIS THIRD CATEGORY OF FACILITY WERE NOT SPECIFICALLY EXCLUDED FROM
REGULATION IN PARTS 264 AND 265, EPA HAS PROVIDED AN EXCLUSION. THE
SPECIAL REGULATORY REQUIREMENTS FOR HAZARDOUS WASTE PRODUCED BY SMALL
QUANTITY GENERATORS ARE DISCUSSED IN THE PREAMBLE TO PART 261 AND AN
ACCOMPANYING BACKGROUND DOCUMENT.
EPA ALSO HAS REFERENCED IN PARTS 264 AND 265 (SEE SECTIONS 264.1
(G)(2) AND 265.1(C)(6) THE EXCLUSION FROM MOST SUBTITLE C REQUIREMENTS
PROVIDED IN SECTION 261.6 FOR HAZARDOUS WASTE THAT IS USED, RE-USED,
RECYCLED, OR RECLAIMED. SUCH WASTE IS SUBJECT TO TRANSPORTATION AND
STORAGE REQUIREMENTS PRIOR TO ITS RE-USE AND RECLAMATION AND THE
PROVISIONS OF SECTION 261.6 WHICH SO PROVIDE ARE REFERENCED IN PARTS 264
AND 265. REGULATION OF RE-USED AND RECYCLED WASTE IS DISCUSSED IN THE
PREAMBLE TO PART 261.
F. GENERATORS WHO ACCUMULATE ON-SITE, FARMERS, AND TOTALLY ENCLOSED
TREATMENT FACILITIES. THE LAST THREE EXCLUSIONS FROM PART 264 AND 265
REQUIREMENTS ARE TWO ACTIVITIES CARRIED ON BY CERTAIN GENERATORS OF
HAZARDOUS WASTE AND ONE TYPE OF FACILITY WHICH EPA BELIEVES NEED NOT BE
SUBJECT TO ANY RCRA SECTION 3004 REQUIREMENTS IN ORDER TO ENSURE
PROTECTION OF HUMAN HEALTH AND THE ENVIRONMENT.
40 CFR 262.34 EXEMPTS GENERATORS WHO ACCUMULATE HAZARDOUS WASTE
ON-SITE FOR 90 DAYS OR LESS (FOR SUBSEQUENT SHIPMENT OFF-SITE) FROM THE
REQUIREMENT TO HAVE A PERMIT, PROVIDED THEY COMPLY WITH CERTAIN
REQUIREMENTS THAT EPA DEEMS SUFFICIENT TO PROTECT HUMAN HEALTH AND THE
ENVIRONMENT DURINC THAT PERIOD. THESE REQUIREMENTS ARE SPECIFIED IN
SECTION 262.34. IF A FARMER DISPOSES OF WASTE PESTICIDES IN ACCORDANCE
WITH SECTION 262.51, THOSE WASTES ARE EXEMPT FROM ALL SECTION 3004
REQUIREMENTS. THIS IS ANOTHER EXEMPTION MADE IN THE PART 262
REGULATIONS WHICH EPA IS CODIFYING IN THE PART 264 AND 265 REGULATIONS
TO AVOID CONFUSION. BOTH OF THESE EXEMPTIONS ARE DISCUSSED IN THE
PREAMBLE TO THE PART 262 REGULATIONS (45 FR 12724-12732, FEBRUARY, 26,
1980) AND THE SUPPORTING MATERIAL FOR THOSE REGULATIONS.
THE THIRD EXEMPTION IS FOR OWNERS AND OPERATORS OF "TOTALLY ENCLOSED
TREATMENT FACILITIES," AS DEFINED IN 40 CFR 260.10. COMMENTERS POINTED
OUT THAT IN SOME PRODUCTION PROCESSES, WASTES (PARTICULARLY ACID AND
ALKALINE SOLUTIONS) ARE TREATED IN PIPES AND OTHER TYPES OF TOTALLY
ENCLOSED ON-SITE FACILITIES, OFTEN RESULTING IN A NON-HAZARDOUS
DISCHARGE.
EPA AGREES THAT TO CLASSIFY ON-SITE "TOTALLY ENCLOSED SYSTEMS," SUCH
AS PIPES, AS HAZARDOUS WASTE TREATMENT FACILITIES AND TO REQUIRE THEM TO
MEET SECTION 3004 STANDARS AND OBTAIN A PERMIT WOULD NOT MAKE A GREAT
DEAL OF SENSE. ACCORDINGLY, FOR THE REASONS DISCUSSED BELOW UNDER
SUBPART Q - CHEMICAL, PHYSICAL, AND BIOLOGICAL TREATMENT FACILITIES,"EPA
HAS EXEMPTED THESE FACILITIES FROM REGULATION UNDER PARTS 264 AND 265
AND FROM THE REQUIREMENT TO OBTAIN A PERMIT IN PART 122. PERSONS WHO
HANDLE HAZARDOUS WASTE IN WHAT THEY BELIEVE TO BE A "TOTALLY ENCLOSED
TREATMENT FACILITY" SHOULD CAREFULLY READ THE DEFINITION OF THAT TERM IN
SECTION 260.10.
2. RELATIONSHIP TO INTERIM STATUS STANDARDS. SECTION 264.3 PUTS
OWNERS AND OPERATORS OF TSDFS ON NOTICE THAT THEY ARE REQUIRED TO COMPLY
WITH PART 265 REQUIREMENTS, RATHER THAN PART 264 REQUIREMENTS, IF THEY
HAVE QUALIFIED FOR INTERIM STATUS UNDER SECTION 3005(E) OF RCRA AND
FINAL ADMINISTRATIVE DISPOSITION OF THEIR PERMIT APPLICATION HAS NOT
BEEN MADE. SECTION 365.1(B) IS A PARRELEL REQUIREMENT.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 026 OF 106
COSTLE D M ADMINISTRATOR
EPA
113390
REGULATION
3. IMMINENT HAZARD ACTION, SECTIONS 264.4 AND 265.4 PUT OWNERS AND
OPERATORS OF TSDFS ON NOTICE THAT NOTWITHSTANDING ANY OF THE OHER
PROVISIONS OF THOSE PARTS, IMMINENT HAZARD ACTIONS MAY ALWAYS BE BROUGHT
PURSUANT TO SECTION 7003 OF RCRA WHEN THE STATUTORY ELEMENTS OF SUCH AS
ANCTION ARE ESTABLISHED.
CORRELATION OF PROPESED AND FINAL RULES FOR PURPOSE, SCOPE, AND
APPLICABILITY
TABLE OMITTED.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 027 OF 106
COSTLE D M ADMINISTRATOR
EPA
113391
REGULATION
SUBPART B OF BOTH PARTS 264 AND 265 CONTAINS A NUMBER OF DISCRETE
SETS OF STANDARDS, EACH OF WHICH APPLIES TO OWNERS AND OPERATORS OF ALL
HAZARDOUS WASTE FACILITIES. THE SUBPART INCLUDES REQUIREMENTS FOR WASTE
ANALYSIS, SECURITY, INSEPCTIONS, AND TRAINING -- ALL OF WHICH WERE
CONTAINED IN SECTION 250.43 OF THE PROPOSED RULES.
1. IDENTIFICATION NUMBER. SECTIONS 264.11 AND 265.11 OF SUBPART B
CONTAIN A STANDARD WHICH REQUIRES THAT THE OWNER OR OPERATOR APPLY TO
EPA FOR AN IDENTIFICATION CODE. THIS REQUIREMENT WAS IN THE PURPOSE,
SCOPE, AND APPLICABILITY SECTION OF THE PROPOSED RULES. HOWEVER,
BECAUSE THE STANDARD IS APPLICABLE TO ALL FACILITIES, THE AGENCY
BELIEVES THAT IT IS MORE LOGICAL TO INCLUDE THE STANDARD IN THE GENERAL
FACILITY SECTION OF THE FINAL RULES.
2. REQUIRED NOTICES. SECTIONS 264.12 AND 265.12 REQUIRE THAT THE
OWNER OR OPERATOR OF A FACILITY NOTIFY THE REGIONAL ADMINISTRATOR AT
LEAST FOUR WEEKS IN ADVANCE OF THE DATE OF ANY SHIPMENTS OF HAZARDOUS
WASTE FROM FOREIGN SOURCES. THIS REQUIREMENT IS A COROLLARY TO THE
PROPOSED SECTION 250.20(C)(3) STANDARD, WHICH REQUIRED GENERATORS WHO
SHIP THEIR WASTE TO FOREIGN GOVERNMENT HAVING JURISDICTION OVER THE
FACILITY TO WHICH THE WASTE IS TO BE SENT. THE AGENCY BELIEVES THAT
THIS REQUIREMENT IS NECESSARY IN ORDER FOR EPA TO EFFECTIVELY OVERSEE
THE TRANSPORTATION AND MANAGEMENT OF HAZARDOUS WASTE IMPORTED TO THE
UNITED STATES.
SECTIONS 264.12 AND 265.12 ALSO REQUIRE THAT, BEFORE TRANSFERRING
OWNERSHIP OR OPERATION OF A FACILITY DURING ITS OPERATING LIFE, OR OF A
DISPOSAL FACILITY DURING THE POST-CLOSURE CARE PERIOD, THE OWNER OR
OPERATOR MUST NOTIFY THE NEW OWNER OR OPERATOR OF THE RCRA SECTION 3004
AND SECTION 3005 REQUIREMENTS. THE AGENCY HAS ADDED THIS REQUIREMENT TO
THE FINAL RULES IN ORDER TO MINIMIZE THE POSSIBLITY THAT AN UNSUSPECTING
BUYER MAY PURCHASE A FACILITY, NOT KNOWING THAT THIS PURCHASE ENTAILS
HIS HAVING TO COMPLY WITH THESE SUBTITLE C REGULATIONS. HOWEVER, IT
SHOULD BE NOTED THAT IF THE "OLD" OWNER OR OPERATOR FAILS TO COMPLY WITH
THIS STANDARD, THE "NEW" OWNER OR OPERATOR IS STILL REQUIRED TO COMPLY
WITH ALL APPLICABLE RCRA REGULATIONS, INCLUDING THOSE IN PART 122
ESTABLISHING REQUIREMENTS FOR PERMITS.
SECTION 264.12 ALSO REQUIRES THE OWNER OR OPERATOR OF AN OFF-SITE
FACILITY TO INFORM THE GENERATOR IN WRITING THAT THE FACILITY HAS THE
APPROPRIATE PERMIT(S) FOR, AND WILL ACCEPT, THE GENERATOR'S WASTE. THE
AGENCY BELIEVES THIS PROVISION, WHICH WAS SUGGESTED IN THE COMMENTS, IS
NECESSARY FOR THE PROPER FUNCTIONING OF THE MANIFEST SYSTEM, BECAUSE
PART 262 REQUIRES THAT GENERATORS SEND THEIR HAZARDOUS WASTE ONLY TO A
FACILITY WITH APPROPRIATE PERMITS FOR THE WASTE (OR TO FACILITIES WHOSE
OWNER OR OPERATOR HAS INTERIM STATUS). A WRITTEN CERTIFICATION BY THE
FACILITY OWNER OR OPERATOR THUS ASSURES THE WASTE GENERATOR THAT THE
REQUIREMENTS OF PART 262 ARE SATISFIED. IT ALSO AVOIDS THE POTENTIAL
PROBLEM OF A GENERATOR DESIGNATING A FACILITY ON THE MANIFEST WHICH HAS
THE APPROPRIATE PERMITS FOR HIS WASTE, BUT WHICH HAS NOT AGREED TO
ACCEPT THE WASTE.
THE REST OF THIS SECTION OF THE PREAMBLE DISCUSSES THE COMMENTS
RECEIVED ON THE PROPOSED SECTION 250.43 STANDARDS CONTAINED IN THIS
SUBPART.
3. GENERAL WASTE ANALYSIS. THE PURPOSE OF THE PROPOSED WASTE
ANALYSIS STANDARDS WAS TO ENSURE THAT OWNERS OR OPERATORS POSSESSED
SUFFICIENT INFORMATION ON THE PROPERTIES OF THE WASTES WHICH THEY
MANAGED, TO BE ABLE TO TREAT, STORE, OR DISPOSE OF THEIR WASTE IN A
MANNER WHICH WOULD NOT POSE A THREAT TO HUMAN HEALTH OR THE ENVIRONMENT.
THE PROPOSED STANDARDS INCLUDED REQUIREMENTS WHICH SPECIFIED THE LEVEL
OF ANALYSIS TO BE PERFORMED ON WASTES MANAGED AT FACILITIES, THE MINIMUM
FREQUENCY WITH WHICH THESE ANALYSES WERE TO BE REPEATED, AND THE
PROPERTIES OF THE WASTE WHICH WERE TO BE DETERMINED TO VERIFY THE
IDENTITY OF EACH TRUCKLOAD, SHIPMENT, OR BATCH OF HAZARDOUS WASTE
MANAGED AT FACILITIES.
THE AGENCY RECEIVED MANY COMMENTS WHICH STATED THAT THE GENERATOR
SHOULD BE REQUIRED TO PROVIDE THE OWNER OR OPERATOR WITH THE INFORMATION
NEEDED TO COMPLY WITH THE SECTION 3004 WASTE ANALYSIS STANDARDS, BECAUSE
THE GENERATOR IS MORE FAMILIAR WITH THE PROPERTIES OF THE WASTE THAN IS
THE OWNER OR OPERATOR, AND IT WOULD THUS BE LESS EXPENSIVE FOR THE
GENERATOR TO CONDUCT THE REQUIRED ANALYSIS. THE AGENCY BELIEVES,
HOWEVER, THAT ALTHOUGH MANY GENERATORS MAY BE FAMILIAR WITH THE
PROPERTIES OF THE WASTE WHICH THEY GENERATE, THERE ARE MANY COMPANIES
WHICH GENERATE WASTE ABOUT WHOSE PROPERTIES THE GENERATORS KNOW VERY
LITTLE. IN THE LATTER CASE, FOR THOSE COMPANIES LACKING ANALYTICAL
EQUIPMENT, THE COST OF SENDING THEIR WASTE TO COMMERCIAL LABORATORIES
FOR ANALYSIS IS COMPARABLE TO THE COST OF ANALYSIS AT FACILITIES WITH
ON-SITE LABS, OR FACILITIES WHICH SUB-CONTRACT THEIR ANALYTICAL WORK.
IN ADDITION, MANY GENERATORS WILL NOT HAVE THE "HANDS ON" KNOWLEDGE OF
THE INFORMATION NEEDED TO TREAT, STORE, OR DISPOSE OF THE WASTE AT ANY
PARTICULAR TYPE OF FACILITY. OWNERS OR OPERATORS WILL NECESSARILY BE IN
A BETTER POSITION TO USE THAT KNOWLEDGE. THE AGENCY BELIEVES THAT THE
APPROACH TAKEN IN THE PROPOSED RULES (WHEREBY OWNERS OR OPERATORS CAN
EITHER CONDUCT THE ANALYSIS THEMSELVES OR ACQUIRE THE ANALYSIS FROM THE
GENERATOR) PROVIDES AS FLEXIBLE AND COST EFFECTIVE A MEANS AS THAT
SUGGESTED BY THE COMMENTERS, TO ENSURE THAT OWNERS OR OPERATORS OBTAIN
THE INFORMATION NEEDED TO MANAGE HAZARDOUS WASTE.
A NUMBER OF COMMENTERS SUGGESTED THAT THE REGULATIONS SHOULD SPECIFY
THAT THE WASTE ANALYSIS REQUIRED UNDER THE SECTION 3001 REGULATIONS
SATISFIES THE REQUIREMENTS FOR WASTE ANALYSIS REQUIRED UNDER SECTION
3004. THE AGENCY DOES NOT AGREE WITH THESE COMMENTERS BECAUSE THE
INFORMATION NEEDED TO CHARACTERIZE A WASTE (AS REQUIRED IN PROPOSED
SECTION 250.13) MAY OVERLAP WITH, BUT IS NOT IDENTICAL TO, THE
INFORMATION NEEDED TO MANAGE A WASTE (AS REQUIRED IN PROPOSED SECTION
250.43). FOR EXAMPLE, TO TREAT A WASTE, ONE NEEDS TO KNOW NOT ONLY THE
CHEMICAL COMPOSITION OF THE WASTE, BUT ALSO THE COMPATIBILITY OF THE
WASTE WITH THE TECHNIQUES AND CHEMICAL REAGENTS USED AT THE FACILITY TO
TREAT THE WASTE. THE WASTE ANALYSIS REQUIRED UNDER SECTION 3001 MAY NOT
PROVIDE THE LATTER TYPE OF INFORMATION, AND THUS, DOES NOT FULLY SATISFY
THE REQUIREMENTS FOR WASTE ANALYSIS PRESCRIBED UNDER SECTION 3004.
HOWEVER, THE STANDARD HAS BEEN REVISED TO MAKE IT CLEAR THAT DATA
DEVELOPED PURSUANT TO SECTION 3001 MAY BE INCLUDED IN THE DATA BASE THAT
THE OWNER OR THE OPERATOR COMPILES TO COMPLY WITH THE SECTION 3004 WASTE
ANALYSIS STANDARDS.
SEVERAL COMMENTERS FELT THAT THE NATURE AND THE SCOPE OF THE REQUIRED
ANALYSIS SHOULD BE MORE SPECIFIC. THE AGENCY PURPOSELY WROTE
OBJECTIVE-ORIENTED WASTE ANALYSIS STANDARDS IN PROPOSED SECTION 250.43
BECAUSE THE INFORMATION NEEDED TO TREAT, STORE, OR DISPOSE OF WASTE
DIFFERS DEPENDING ON THE METHODS USED TO MANAGE WASTE (E.G., THE
INFORMATION NEEDED TO INCINERATE WASTE DIFFERS FROM THAT NEEDED TO
NEUTRALIZE WASTE). HOWEVER, THE AGENCY AGREES THAT THE REGULATIONS CAN
BE SOMEWHAT MORE DETAILED REGARDING THE STANDARDS FOR WASTE ANALYSIS.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 028 OF 106
COSTLE D M ADMINISTRATOR
EPA
113392
REGULATION
FOR THIS REASON, IN ADDITION TO THE GENERAL WASTE ANALYSIS STANDARDS
WHICH APPLY TO ALL FACILITIES, THE FINAL RULES ALSO INCLUDE, IN MOST
TECHNICAL SECTIONS OF THE REGULATIONS, WASTE ANALYSIS STANDARDS SPECIFIC
TO THE MANAGEMENT METHODS REGULATED IN THAT PARTICULAR SECTION. FOR
EXAMPLE, THE SECTION 265.345 STANDARDS FOR INCINERATION CONTAIN SPECIFIC
PARAMETERS (E.G., HALOGEN AND SULFUR CONTENT AND HEATING VALUE) FOR
WHICH WASTE MUST BE ANALYZED BEFORE IT IS INCINERATED. BY INCLUDING THE
MORE DETAILED INFORMATIONAL REQUIREMENTS IN THE TECHNICAL SECTIONS OF
THE REGULATIONS, WHILE LEAVING THE MORE GENERAL REQUIREMENTS IN THE
GENERAL FACILITY SECTION OF THE REGULATIONS, THE AGENCY BELIEVES THAT
THE REGULATIONS ARE SEPCIFIC ENOUGH SO THAT OWNERS OR OPERATORS WILL
KNOW WHAT IS EXPECTED OF THEM, AND YET ARE FLEXIBLE ENOUGH SO THAT AN
OWNER OR OPERATOR WILL ONLY BE REQUIRED TO CONDUCT ANALYSES WHICH ARE
APPROPRIATE FOR THE MANAGEMENT METHODS USED AT HIS FACILITY.
SEVERAL COMMENTERS OBJECTED TO THE MINIMUM ANNUAL RETESTING
REQUIREMENT, STATING THAT IT WAS UNNECESSARY TO REANALYZE WASTE WHEN THE
OWNER OR OPERATOR IS CONFIDENT THAT THE PROPERTIES OF THE WASTES ARE
UNCHANGED.
THE AGENCY BELIEVES THAT THE PROPERTIES OF MOST WASTE STREAMS VARY
WITHIN THE COURSE OF A YEAR, AND THEREFORE MOST OWNERS OR OPERATORS
SHOULD RE-ANALYZE WASTE, AT LEAST ANNUALLY, TO DETERMINE IF SUCH
VARIATIONS WILL INFLUENCE THE EFFECTIVENESS OF THE METHOD USED AT THE
FACILITY TO MANAGE WASTE. HOWEVER, IF THE OWNER OR OPERATOR CORRECTLY
BELIEVES THAT THE PROPERTIES OF THE WASTE WHICH HE MANAGES WILL NOT
CHANGE, THEN TO RE-ANALYZE THE WASTE WOULD BE AN UNNECESSARY EXPENSE.
THEREFORE, THE MINIMUM ANNUAL RETESTING REQUIREMENT HAS BEEN DELETED
FROM THE REVISED RULES. HOWEVER, THE REGULATIONS DO REQUIRE THAT, AT A
MINIMUM, WASTE MUST BE RE-ANALYZED (1) WHEN THE OWNER OR OPERATOR IS
NOTIFIED, OR HAS REASON TO BELIEVE, THAT THE PROCESS OR OPERATION
GENERATING THE WASTE HAS CHANGED IN A WAY THAT WOULD LEAD HIM TO BELIEVE
THAT THE HAZARDOUS PROPERTY OR CHARACTERISTICS OF THE WASTE WOULD
CHANGE, AND (2) FOR OFF-SITE FACILITIES, WHEN THE RESULTS OF THE
VERIFICATION ANALYSIS REQUIRED IN SECTIONS 264.13 AND 265.13 INDICATE
THAT THE COMPOSITION OF CHARACTERISTICS OF THE WASTE DO NOT MATCH THE
IDENTITY OF THE WASTE DESIGNATED ON THE ACCOMPANYING MANIFEST.
OBJECTIONS WERE ALSO RAISED REGARDING THE REQUIREMENT TO ANALYZE
WASTE FOR THE FOUR PROPERTIES SPECIFIED IN PROPOSED SECTION 250.43(H)
(I.E. PHYSICAL APPEARANCE, SPECIFIC GRAVITY, PH, AND VAPOR PRESSURE),
BECAUSE ANALYSIS FOR THESE PROPERTIES IS NOT APPROPRIATE FOR ALL
CATEGORIES OF WASTE. MANY COMMENTERS ALSO FELT THAT TO REQUIRE OWNERS
OR OPERATORS TO SAMPLE EACH TRUCKLOAD OF WASTE FOR THESE FOUR PROPERTIES
WAS UNREASONABLE FOR MULTIPLE TRUCKLOADS OF WASTE WHICH HAVE UNIFORM
PHYSICAL AND CHEMICAL CHARACTERISTICS.
THE AGENCY AGREES THAT MEASURING FOR THE FOUR PROPERTIES SPECIFIED IN
PROPOSED SECTION 250.43(H) MAY BE INAPPROPRIATE FOR CERTAIN CATEGORIES
OF WASTE AND MAY BE UNNECESSARY FOR MULTIPLE TRUCKLOADS OF UNIFORM
WASTE. THEREFORE, THE FOUR PROPERTIES HAVE BEEN DELETED FROM THE WASTE
ANALYSIS STANDARDS. INSTEAD, THE FINAL RULES REQUIRE THAT OWNERS OR
OPERATORS DEVELOP AND FOLLOW A WASTE ANALYSIS PLAN WHICH SPECIFIES THE
TESTS TO BE USED, AND THE FREQUENCY WITH WHICH THESE TESTS WILL BE
CONDUCTED, TO DETERMINE THE IDENTITY OF INCOMING WASTE MANAGED AT THE
FACILITY. THE PLAN MUST BE PREPARED AND FOLLOWED DURING INTERIM STATUS.
THE REGIONAL ADMINISTRATOR MAY REQUEST THE PLAN AT ANY TIME AFTER THE
EFFECTIVE DATE OF THESE REGULATIONS. THE AGENCY ALSO WILL REIVEW THE
CONTENT OF THE PLAN WHEN IT EVALUATES THE FACILITY'S PERMIT APPLICATION.
WHERE THE REGIONAL ADMINISTRATOR BELIEVES THAT THE FACILITY'S WASTE
ANALYSIS PLAN IS INADEQUATE, HE WILL REQUIRE THAT THE PLAN BE MODIFIED
TO INCLUDE PROCEDURES WHICH HE BELIEVES ARE APPROPRIATE TO DETERMINE THE
IDENTITY OF INCOMING WASTE TO THE FACILITY.
IN ADDITION TO THE PROCEDURES USED TO DETERMINE THE IDENTITY OF
INCOMING WASTE, THE FINAL RULES ALSO REQUIRE THAT THE FACILITY'S WASTE
ANALYSIS PLAN DESCRIBE:
(1) THE PARAMETERS FOR WHICH EACH WASTE WILL BE ANALYZED IN THE
DETAILED CHEMICAL AND PHYSICAL ANALYSIS REQUIRED FOR EACH WASTE MANAGED
AT THE FACILITY;
(2) THE TEST METHODS TO BE USED TO TEST FOR THESE PARAMETERS; AND
(3) THE SAMPLING METHODOLOGY WHICH WILL BE USED TO OBTAIN
REPRESENTATIVE SAMPLES OF THE WASTE TO BE ANALYZED.
THE AGENCY BELIEVES THAT THE REQUIREMENT FOR DEVLOPING AND
MAINTAINING A WASTE ANALYSIS PLAN WILL NOT ONLY ALLOW OWNERS OR
OPERATORS TO TAILOR THEIR WASTE ANALYSIS PROCEDURES TO THE TYPE OF
WASTES AND TECHNIQUES WHICH THE FACILITY USES TO MANAGE THESE WASTES,
BUT WILL ALSO PROVIDE THE AGENCY WITH A REVIEW MECHANISM WHICH WILL
ENCOURAGE OWNERS OR OPERATORS TO CONDUCT THOROUGH ANALYSES OF THE WASTES
WHICH THEY MANAGE. COMPLIANCE WITH THE SELF-DEVELOPED WASTE ANALYSIS
PLAN, AS WITH THE OTHER PLANS REQUIRED IN THESE REGULATIONS, IS A
SEPARATE, ENFORCEABLE, REGULATORY REQUIREMENT.
EPA IS PROMULGATING WASTE ANALYSIS REQUIREMENTS IN PART 265, BUT WILL
ACCEPT COMMENTS ON THEIR APPROPRIATENESS AS INTERIM STATUS STANDARDS
BECAUSE THEY WERE NOT SPECIFICALLY PROPOSED AS INTERIM STATUS STANDARDS.
SECURITY. THE PURPOSE OF THE PROPOSED SECURITY STANDARDS WAS TO
PREVENT THE UNKNOWING OR UNAUTHORIZED ENTRY OF PEOPLE OR LIVESTOCK UNTO
THE ACTIVE PORTIONS OF FACILITIES. TO ACCOMPLISH THIS OBJECTIVE, THE
PROPOSED RULES INCLUDED REQUIREMENTS WHICH SPECIFIED THE HEIGHT OF THE
FENCE, THE MEANS TO CONTROL ENTRY AT THE GATE, AND THE HEIGHT OF THE
LETTERS ON THE WARNING SIGN WHICH WAS TO BE POSED AT THE ENTRANCE TO THE
ACTIVE PORTION OF THE FACILITY. HOWEVER, THE PROPOSED RULES CONTAINED
RATHER FLEXIBLE VARIANCES FROM THE SEPCIFIC REQUIREMENTS FOR FENCES AND
SIGNS.
MOST OF THE COMMENTS RECEIVED ON THE SECURITY STANDARDS ADDRESSED THE
REQUIREMENT FOR A SIX-FOOT FENCE. THE MAJORITY OF THE COMMENTERS FELT
THAT THE STANDARD SHOULD ALLOW MEANS OTHER THAN A SIX FOOT FENCE (OR THE
ALTERNATIVES SPECIFIED IN THE "NOTE" TO THE STANDARD) TO PREVENT ENTRY
ONTO A FACILITY. SEVERAL COMMENTERS SUGGESTED THAT THE STANDARD BE
WRITTEN IN TERMS OF A PERFORMANCE STANDARD, AND A FEW COMMENTERS NOTED
THAT THE IMPLICIT PERFORMANCE STANDARD IN THE PROPOSED RULES, WHICH
REQUIRED THE PREVENTION OF UNAUTHORIZED ENTRY ONTO A FACILITY, SHOULD BE
CHANGED TO REQUIRE THE DETERRENCE OF UNAUTHORIZED ENTRY ONTO A FACILITY,
BECAUSE IT IS IMPRACTICAL TO CONSTRUCT A NON-CLIMBABLE FENCE. IN
ADDITION, A NUMBER OF COMMENTERS SUGGESTED THAT FACILITIES SHOULD NOT
HAVE TO COMPLY WITH THE SECURITY REQUIREMENTS IF THE WASTES ARE
SUFFICIENTLY BENIGN SO THAT PEOPLE NEED NOT BE KEPT AWAY FROM THE SITE.
FURTHERMORE, A FEW COMMENTERS POINTED OUT THAT THE ACTIVE PORTION OF A
FACILITY SHOULD NOT HAVE TO BE SURROUNDED BY A FENCE IF THE ACTIVE
PORTION IS LOCATED WITHIN A FACILITY OR PLANT THAT MEETS THE SECURITY
REQUIREMENTS.
IN RESPONSE TO THESE COMMENTS, THE SECURITY STANDARDS HAVE BEEN
REWRITTEN TO INCLUDE THE GENERAL PERFORMANCE STANDARD THAT A FACILITY'S
SECURITY SYSTEM MUST PREVENT THE UNKNOWING ENTRY OF PEOPLE, AND MINIMIZE
THE POTENTIAL FOR THE UNAUTHORIZED ENTRY OF PEOPLE OR LIVESTOCK ONTO THE
ACTIVE PORTIONS OF FACILITIES. THE FINAL RULES CONTAIN TWO CONDITIONS
FOR AN EXEMPTION FROM THE PERFORMANCE STANDARD: (1) IF UNAUTHORIZED OR
UNKNOWING ENTRY WILL NOT RESULT IN INJURY TO PEOPLE OR LIVESTOCK WHO
MIGHT ENTER THE FACILITY, AND (2) IF SUCH ENTRY WILL NOT RESULT IN
INJURY TO THE ENVIRONMENT (E.G., AS A RESULT OF DISTURBING THE WASTE OR
THE EQUIPMENT WITHIN THE ACTIVE PORTION).
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 029 OF 106
COSTLE D M ADMINISTRATOR
EPA
113393
REGULATION
BECAUSE THESE TWO CONDITIONS ARE RARELY CONCURRENTLY SATISFIED, THE
AGENCY DOES NOT EXPECT THAT MANY SITES WILL BE EXEMPT FROM THE SECURITY
REQUIREMENTS.
TO INDICATE HOW TO COMPLY WITH THE GENERAL PERFORMANCE STANDARD, A
REVISION OF THE PROPOSED FENCING REQUIREMENT HAS BEEN PROVIDED IN THE
FINAL RULES. THE HEIGHT OF A FENCE, IF USED, IS NOT SPECIFIED, AND
ALTERNATIVES TO FENCES ARE ALLOWED. IN ADDITION, THE STANDARD HAS BEEN
MADE MORE FLEXIBLE BY ALLOWING THE USE OF AN AROUND-THE-CLOCK
SURVEILLANCE SYSTEM, INSTEAD OF THE PHYSICAL BARRIER (I.E., A FENCE)
SPECIFIED IN THE PROPOSED RULES, TO CONTROL ENTRY ONTO A FACILITY. THE
AGENCY BELIEVES THAT A CONTINUOUS SURVEILLANCE SYSTEM CAN BE AS
EFFECTIVE AS A PHYSICAL BARRIER TO CONTROL ACCESS TO THE ACTIVE PORTION
BECAUSE, WHEN AN UNAUTHORIZED PERSON APPROACHES THIS AREA, FACILITY
GUARDS OR FACILITY PERSONNEL CAN ENSURE THAT THE PERSON DOES NOT ENTER
THE ACTIVE PORTION.
THE AGENCY AGREES THAT WHEN ACCESS TO THE FACILITY IS ALREADY
CONTROLLED BY AN ADEQUATE SECURITY SYSTEM, TO ERECT A FENCE OR OTHER
BARRIER AROUND THE ACTIVE PORTION WOULD NOT PROVIDE ADDITIONAL
PROTECTION TO HUMAN HEALTH AND THE ENVIRONMENT. ACCORDINGLY, EPA HAS
CLARIFIED THE REGULATIONS SO THAT AN OWNER OR OPERATOR CAN DEMONSTRATE
THAT THE ACTIVE PORTION OF HIS FACILITY COMPLIES WITH THE SECURITY
REGULATIONS, BASED UPON THE SECURITY SYSTEM OF THE FACILITY (OR THE
MANUFACTURING OPERATION) WITHIN WHICH THE ACTIVE PORTION IS LOCATED.
IN ADDITION, A NUMBER OF COMMENTERS POINTED OUT THAT THE PROPOSED
STANDARD, WHICH ONLY REQUIRED SIGNS TO BE POSTED AT THE GATES TO THE
ACTIVE PORTION OF THE FACILITY, COULD RESULT IN INADEQUATE WARNING TO
UNKNOWING PERSONS APPROACHING FACILITIES WHERE FENCES ARE NOT USED TO
CONTROL ACCESS TO THE FACILITY. FOR THIS REASON, SEVERAL COMMENTERS
SUGGESTED THAT THE STANDARD SHOULD REQUIRE THAT SIGNS BE POSED IN
SUFFICIENT NUMBERS TO BE SEEN FROM ANY APPROACH TO THE ACTIVE PORTION OF
THE FACILITY.
THE AGENCY AGREES THAT BECAUSE THE SECURITY SYSTEMS (INCLUDING
FENCES) USED TO CONTROL ACCESS TO FACILITIES WILL NOT BE IMPENETRABLE,
SIGNS SHOULD BE POSTED ALONG THE PERIPHERY OF THE ACTIVE PORTION TO WARN
UNKNOWING PEOPLE THAT ENTERING ONTO THE ACTIVE PORTION IS POTENTIALLY
HAZARDOUS. THEREFORE, EPA HAS TAKEN THE COMMENTERS' SUGGESTION AND HAS
REVISED THE REQUIREMENT FOR THE PLACEMENT OF THE WARNING SIGNS.
ALTHOUGH THE AGENCY RECEIVED NO CRITICISM OF THE FOUR-INCH
LETTERING REQUIREMENT FOR SIGNS, THE UNDERLYING THEME OF THE
MAJORITY OF THE COMMENTS WAS THAT THE PROPOSED SECURITY
STANDARDS WERE TOO SPECIFIC. BECAUSE THE AGENCY BELIEVES THAT
THE FOUR-INCH LETTERING REQUIREMENT MAY HAVE BEEN TOO INFLEXIBLE,
A MORE PERFORMANCE-ORIENTED PROVISION, WHICH REQUIRES THAT THE
WARNING ON THE SIGN BE LEGIBLE FROM AT LEAST 7 1/2 METERS (25
FEET), HAS BEEN SUBSTITUTED FOR IT IN THE FINAL RULES. THIS
NEW APPROACH WILL PROVIDE MORE FLEXIBILITY.
THE AGENCY BELIEVES THAT BECAUSE THE "NOTE" TO THE PROPOSED STANDARD
PROVIDED A VARIANCE TO THE REQUIREMENT FOR THE STATEMENT: "WARING --
UNAUTHORIZED PERSONNEL KEEP OUT" ON THE SIGN, NO COMMENTS WERE RECEIVED
ON THIS ASPECT OF THE STANDARD. THE AGENCY BELIEVES THAT A VARIANCE TO
THE WORDING REQUIREMENT SHOULD BE RETAINED IN THE FINAL RULES FOR
EXISTING SIGNS, BECAUSE IT WOULD BE UNNECESSARILY EXPENSIVE TO REPLACE
SIGNS AT FACILITIES WHICH DO NOT CONTAIN THE EXACT WORDING SPECIFIED IN
THE FINAL STANDARD, BUT WHICH NONETHELESS GIVE ADEQUATE WARNING TO
UNKNOWING PEOPLE TO STAY AWAY. HOWEVER, TO MAKE SURE THAT THE NEW SIGNS
POSTED AT HAZARDOUS WASTE FACILITIES ARE UNIFORM, THE AGENCY BELIEVES
THAT THEY SHOULD CONTAIN THE WORDING SPECIFIED IN THE STANDARD.
THEREFORE, IN THE FINAL RULES, THE VARIANCE TO THE MESSAGE ON THE SIGN
ONLY APPLIES TO EXISTING SIGNS.
IN ADDITION, THE AGENCY HAS SUBSTITUTED THE WORD "DANGER" FOR
"WARNING" IN THE FINAL RULES. THE REASON FOR THIS CHANGE IS THE WORD
"DANGER", MORE THAN "WARNING", INDICATES THE POTENTIAL FOR HARM.
5. GENERAL INSPECTION REQUIREMENTS. SECTION 250.43-6 OF THE
PROPOSED REGULATION SPECIFIED SEVEN PARTS OR ASPECTS OF A FACILITY WHICH
OWNERS OR OPERATORS WERE REQUIRED TO INSPECT DAILY FOR SPECIFIC SIGNS OF
DETERIORATION OR MALFUNCTION. OWNERS OR OPERATORS WERE ALSO REQUIRED TO
RECORD OBSERVATIONS NOTED DURING THE INSPECTION IN THE FACILITY'S
OPERATING LOG.
THE AGENCY RECEIVED MANY COMMENTS CONCERNING THE SPECIFIC LISTING OF
REQUIRED INSPECTION ITEMS (I.E., DIKES, FENCES, ETC.) AND THE ABSOLUTE
REQUIREMENT FOR DAILY INSPECTIONS. SEVERAL OF THE COMMENTERS NOTED THAT
FOR SOME OF THE LISTED ITEMS (FOR EXAMPLE, FUGITIVE EMISSIONS), THE
REQUIRED INSPECTIONS WERE EITHER NOT APPLICABLE TO ALL FACILITY TYPES,
OR WOULD BE IMPRACTICAL TO IMPLEMENT. OTHERS NOTED THAT SUCH A LIST
COULD NOT INCLUDE ALL OF THE POSSIBLE ITEMS WHICH SHOULD BE INSPECTED.
AS FOR INSPECTION FREQUENCY, MANY OF THE COMMENTS ARGUED THAT DAILY
INSPECTIONS ARE SIMPLY UNNECESSARY. THEY POINTED OUT THAT, IN MANY
CASES, THE RATE OF DETERIORATION IS SO SLOW (IN THE CORROSION OF TANKS,
AND THE EROSION OF DIKES, FOR EXAMPLE) THAT OCCASIONAL INSPECTIONS ARE
SUFFICIENT TO REVEAL ANY PROBLEMS LONG BEFORE FAILURE OCCURS.
THE THRUST OF THESE COMMENTS WAS THAT THE SPECIFIC ITEMS TO BE
INSPECTED AND THE FREQUENCY OF INSPECTION SHOULD BE DETERMINED BY THE
OWNER OR OPERATOR ON A CASE-BY-CASE BASIS. THE AGENCY AGREES, AND HAS
REVISED THE REGULATIONS TO REQUIRE THE OWNER OR OPERATORS TO DEVELOP AND
FOLLOW HIS OWN WRITTEN INSPECTION SCHEDULE. THIS WILL BE BASED ON THE
FACILITY'S CRITICAL PROCESSES, EQUIPMENT, AND STRUCTURES, AND ON THE
POTENTIAL FOR FAILURE AND THE RATE OF ANY DETERIORATION PROCESSES
(CORROSION, EROSION, ETC) WHICH MAY LEAD TO FAILURE. COMPLIANCE WITH
THE PLAN IS A SEPARATE, ENFORCEABLE REGULATORY REQUIREMENT.
DURING THE PERMITTING PROCESS, THE AGENCY WILL REVIEW THE INSPECTION
SCHEDULE FOR ITS ADEQUACY IN PROTECTING HUMAN HEALTH AND THE
ENVIRONMENT, FOR COMPREHENSIVENESS, AND FOR CONSISTENCY WITH INSPECTION
SCHEDULES FOR SIMILAR FACILITIES. THE AGENCY WILL ALSO ASSIST THE OWNER
OR OPERATOR IN OPTIMIZING THE EFFICIENCY AND EFFECTIVENESS OF THE
SCHEDULE BASED ON ITS EXPERIENCE WITH SIMILAR FACILITIES. DURING
INTERIM STATUS, CONSULTATION AND REVIEW WITH THE AGENCY WILL NOT
NORMALLY BE REQUIRED.
THE AGENCY REALIZES THAT NOT ALL OWNERS OR OPERATORS ARE EQUALLY
KNOWLEDGEABLE. THEREFORE, EPA HAS RETAINED MINIMUM SPECIFIC INSPECTION
REQUIREMENTS, WHICH INCLUDE SOME OBVIOUS INSPECTION POINTS, AND SOME
MINIMUM FREQUENCIES FOR INSPECTING THEM. THESE REQUIREMENTS HAVE BEEN
INCORPORATED INTO THE REGULATIONS FOR SPECIFIC FACILITY TYPES (TANKS,
SURFACE IMPOUNDMENTS, ETC.) TO CLARIFY HOW THEY ARE TO BE APPLIED TO
THESE FACILITIES.
THE FINAL RULES ALSO REQUIRE THE OWNER OR OPERATOR TO MAKE A RECORD
OF ALL INSPECTIONS, AND TO KEEP IT ON FILE FOR THREE YEARS. IN ADDITION
TO INFORMATION ON THE OBSERVATION, THIS RECORD MUST SPECIFY WHEN THE
INSPECTION WAS MADE, WHO MADE IT, AND WHEN ANY REPAIRS WERE MADE. THE
RECORD CAN TAKE THE FORM OF AN INSPECTION CHECKLIST; THIS WOULD COMBINE
THE RECORDKEEPING WITH A USEFUL INSPECTION PROCEDURE. IN ANY CASE, THE
RECORD WILL HELP ASSURE THE AGENCY THAT THE OWNER OR OPERATOR IS IN FACT
CONDUCTING INSPECTIONS, AND IS MAKING ANY NEEDED REPAIRS. ADDITIONALLY,
SHOULD AN ENVIRONMENTAL OR HUMAN HEALTH INCIDENT ACTUALLY OCCUR, THESE
RECORDS WILL HELP TO RECONSTRUCT THE EVENTS THAT LED TO IT, AND MAY ALSO
PROVIDE A VALUABLE RESOURCE FOR ANY EMERGENCY DECISIONS. AS ONE
INCIDENTAL BENEFIT, THE RECORD WILL HELP MANAGEMENT AUDIT THE
RELIABILITY OF EQUIPMENT, THE EFFICIENCY OF MAINTENANCE ACTIVITIES, AND
THE EFFECTIVENSS OF THE INSPECTION SCHEDULE.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 030 OF 106
COSTLE D M ADMINISTRATOR
EPA
113394
REGULATION
6. PERSONNEL TRAINING. THE PURPOSE OF THE PROPOSED TRAINING
REQUIREMENTS WAS TO REDUCE THE POTENTIAL FOR MISTAKES WHICH MIGHT
THREATEN HUMAN HEALTH OR THE ENVIRONMENT BY ENSURING THAT FACILITY
PERSONNEL ACQUIRE EXPERTISE IN THE AREAS TO WHICH THEY ARE ASSIGNED.
THE PROPOSED STANDARDS INCLUDED REQUIREMENTS WHICH SPECIFIED THE TIME BY
WHICH FACILITY PERSONNEL MUST OBTAIN THE TRAINING NECESSARY TO DO THEIR
JOBS, THE RECORDS TO BE MAINTAINED AT THE FACILITY OF THE TRAINING
RECEIVED BY ITS EMPLOYEES, AND THE MINIMUM FREQUENCY WITH WHICH THE
INITIAL TRAINING RECEIVED BY THE EMPLOYEES MUST BE REVIEWED. IN
ADDITION, THE PROPOSED RULES REQUIRED FACILITY PERSONNEL TO BE FAMILIAR
WITH THE FACILITY'S CONTINGENCY PLAN.
MANY OF THE COMMENTS RECEIVED ON THE PROPOSED RULES ADDRESSED THE
FORMAT AND CONTENT OF THE REQUIRED TRAINING PROGRAMS. SOME COMMENTERS
SUGGESTED THAT THE STANDARDS ALLOW IN-HOUSE TRAINING PROGRAMS AND
ON-THE-JOB TRAINING IN PLACE OF THE FORMAL CLASSROOM INSTRUCTION IN
HAZARDOUS WASTE MANAGEMENT REQUIRED IN THE PROPOSED RULES. SEVERAL
OTHER COMMENTERS REQUESTED THAT THE REGULATIONS SPECIFY THE TYPE,
LENGTH, AND INTENSITY OF THE COURSES OF INSTRUCTION TO BE ADMINISTERED
TO FACILITY PERSONNEL.
THE AGENCY AGREES THAT FORMAL CLASSROOM INSTRUCTION MAY NOT ALWAYS BE
THE BEST APPROACH TO TRAINING, AND THE SUPERVISED ON-THE-JOB TRAINING IS
A VALID SUBSTITUTE FOR, OR SUPPLEMENT TO, FORMAL INSTRUCTION.
ACCORDINGLY, THE FINAL TRAINING STANDARDS REFLECT THE AGENCY'S
ACCEPTANCE OF IN-HOUSE TRAINING PROGRAMS AND ON-THE-JOB TRAINING AS A
MEANS OF COMPLYING WITH THE TRAINING REQUIREMENTS. HOWEVER, THE
CONTENT, SCHEDULE, AND TECHNIQUES TO BE USED IN THE ON-THE-JOB TRAINING
PROGRAM MUST BE DESCRIBED IN THE TRAINING RECORDS MAINTAINED AT THE
FACILITY AND WILL BE SUBJECT TO APPROVAL DURING THE PERMITTING PROCESS.
COMPLIANCE WITH THE PROGRAM DESCRIBED IN THE TRAINING RECORDS IS A
SEPARATE, ENFORCEABLE REGULATORY REQUIREMENT.
GIVEN THE VARIABILITY IN WASTE TYPES, MANAGEMENT PROCESSES, AND
EMPLOYEE FUNCTIONS AT HAZARDOUS WASTE FACILITIES, THE AGENCY BELIEVES
THAT IT IS NEITHER NECESSARY NOR DESIRABLE TO RIGIDLY SPECIFY TRAINING
COURSES IN REGULATIONS. HOWEVER, THE AGENCY IS PREPARING A TRAINING
MANUAL WHICH WILL PROVIDE ADVICE ON DESIRABLE TYPES OF INSTRUCTION FOR
THE VARIOUS JOBS CARRIED OUT AT HAZARDOUS WASTE MANAGEMENT FACILITIES.
SEVERAL COMMENTERS WERE CONCERNED THAT THE SIX-MONTH PERIOD FOR
COMPLYING WITH THE TRAINING REQUIREMENTS MAY BE TOO SHORT, BECAUSE THERE
MAY BE A SHORTAGE OF FORMAL TRAINING PROGRAMS IN HAZARDOUS WASTE
MANAGEMENT.
THE AGENCY BELIEVES THAT ITS ACCEPTANCE OF SUPERVISED ON-THE-JOB
TRAINING TO ACHIEVE COMPLIANCE WITH THE TRAINING REQUIREMENTS WILL HELP
TO OFFSET THE PROBLEMS CAUSED BY A POSSIBLE SHORTAGE OF FORMAL TRAINING
PROGRAMS. WHERE FORMAL PROGRAMS ARE UNAVAILABLE, A FACILITY CAN USE
IN-HOUSE TRAINING PROGRAMS AND SUPERVISED ON-THE-JOB TRAINING TO PROVIDE
THE REQUIRED TRAINING. BECAUSE THE MAJORITY OF THE PHASE I STANDARDS
ARE NON-TECHNICAL (E.G., THE MANIFEST AND RECORDKEEPING REQUIREMENTS),
THE AGENCY BELIEVES THAT MOST TRAINING CAN BE CONDUCTED IN-HOUSE. WHEN
THE PHASE II STANDARDS ARE PROMULGATED, FACILITY PERSONNEL WILL HAVE
ANOTHER SIX MONTHS FROM THE EFFECTIVE DATE OF THE PHASE II STANDARDS TO
ACQUIRE THE EXPERTISE NEEDED TO COMPLY WITH THE ADDITIONAL STANDARDS.
THUS, THE SHORTAGE IN FORMAL COURSES IN HAZARDOUS WASTE MANAGEMENT
SHOULD NOT CAUSE FACILITY PERSONNEL TO MISS THE DEADLINE BY WHICH
COMPLIANCE WITH THE TRAINING REQUIREMENTS MUST BE ACHIEVED.
COMMENTERS SUGGESTED THAT THE SIX-MONT "GRACE PERIOD" FOR UNTRAINED
EMPLOYEES SHOULD NOT BE EXTENDED TO EMPLOYEES HIRED AFTER THE EFFECTIVE
DATE OF THESE REGULATIONS. WORK AND TRAINING SCHEDULES MAY MAKE THAT AN
IMPRACTICAL REQUIREMENT, BUT THE AGENCY HAS DECIDED, FOR SAFETY REASONS,
TO REQUIRE THAT UNTRAINED EMPLOYEES WORK ONLY IN SUPERVISED POSITIONS.
A NUMBER OF COMMENTERS WERE ALSO CONCERNED THAT THE REQUIREMENTS FOR
DETAILED WRITTEN JOB DESCRIPTION MIGHT LEAD TO UNION GRIEVANCES AND
ARBITRATION. FOR THIS REASON, THE COMMENTERS SUGGESTED THAT THE
STANDARD BE REVISED TO ALLOW THE JOB DESCRIPTIONS TO BE WRITTEN IN A
MANNER SIMILAR TO DESCRIPTIONS FOR OTHER SIMILAR POSITIONS IN THE SAME
COMPANY LOCATION OR BARGAINING UNIT.
IT WAS NOT THE AGENCY'S INTENT TO INTERFERE IN LABOR-MANAGEMENT
ISSUES. EPA'S ONLY INTEREST IN THE JOB DESCRIPTIONS OF FACILITY
PERSONNEL IS TO ENABLE THE AGENCY TO DETERMINE IF EACH PERSON IS
RECEIVING A LEVEL TRAINING THAT IS COMMENSURATE WITH THE PERSON'S DUTIES
AND RESPONSIBILITIES. SINCE THE AGENCY BELIEVES THAT THE SUGGESTED
REVISION OF THE RECORDKEEPING REQUIRMENTS WILL NOT DIMINISH THE REGIONAL
ADMINISTRATOR'S ABILITY TO MAKE THIS DETERMINATION, THE STANDARDS HAVE
BEEN REVISED ACCORDING TO THE COMMENTERS' SUGGESTION.
TWO OTHER STANDARDS HAVE NOW BEEN PLACED WITT THE TRAINING
REQUIREMENTS. THE FIRST OF THESE STANDARDS SPECIFIES THE LENGTH OF TIME
THE FACILITY MUST KEEP TRAINING RECORDS. THIS REQUIREMENT WAS PROPOSED
IN THE SECTION OF THE REGULATIONS DEALING WITH MANIFEST, RECORDKEEPING,
AND REPORTING (SECTION 250.43-5). HOWEVER, IN ORDER TO REDUCE THE NEED
TO CROSS REFERENCE WITHIN THE REGULATIONS, THE AGENCY HAS DECIDED TO
PLACE ALL OF THE RECORDKEEPING STANDARDS WHICH DEAL WITH TRAINING INTO
THE SECTION OF THE REGULATIONS ON TRAINING. SIMILARLY, THE ELEMENTS OF
THE FACILITY'S EMERGENCY RESPONSE PROCEDURES WITH WHICH FACILITY
PERSONNEL MUST BECOME FAMILIAR HAVE BEEN INCORPORATED INTO THE TRAINING
REQUIREMENTS.
7. GENERAL REQUIREMENTS FOR IGNITABLE, REACTIVE, OR INCOMPATIBLE
WASTES. AS DISCUSSED EARLIER, THE AGENCY HAS ADDED GENERAL REQUIREMENTS
FOR HANDLING IGNITABLE, REACTIVE, OR INCOMPATIBLE WASTES IN SECTION
265.17 OF THE INTERIM STATUS STANDARDS. IN THE PHASE II REGULATIONS,
THE AGENCY PLANS TO AMEND PART 264 BY MOVING SECTION 264.36 TO A NEW
SECTION 264.17 (A), AND BY ADOPTING SECTION 265.17(B) AS A NEW SECTION
264.17(B). THEREFORE, THE AGENCY WILL USE ANY COMMENTS ON SECTION
265.17 FOR THAT PURPOSE ALSO.
AS THE PRESENT DEFINITION OF INCOMPATIBLE WASTES REVEALS, THE
PROBLEMS POSED BY INCOMPATIBLE WASTES FALL INTO TWO GENERAL AREAS. THE
FIRST COVERS WASTES WHICH ARE INCOMPATIBLE WITH THE MATERIALS CONTAINING
THEM BECAUSE THEY WOULD CORRODE OR OTHERWISE CAUSE THE DECAY OF THOSE
MATERIALS. THE STANDARDS IN THE SUBSTANTIVE REGULATIONS WERE DRAWN FROM
THE PROPOSED STANDARDS FOR STORAGE GENERALLY, TANKS, CONTAINERS,
TREATMENT GENERALLY, BASINS, AND CHEMICAL, PHYSICAL, AND BIOLOGICAL
TREATMENT FACILITIES, AND NOW ARE APPLIED TO WASTE PILES AS WELL,
BECAUSE THEY POSE SIMILAR PROBLEMS. THE AGENCY HAS CHOSEN SLIGHTLY
DIFFERENT SOLUTIONS TO THESE PROBLEMS FOR CONTAINERS, TANKS AND
TREATMENT FACILITIES, AND WASTE PILES. THESE SOLUTIONS ARE DISCUSSED IN
THE SEPARATE SECTIONS FOR THESE TYPES OF EQUIPMENT OR FACILITIES.
THE SECOND AND BROADEST GROUP OF PROBLEMS IS THE POTENTIAL FOR THE
CREATION OF HARMFUL REACTIONS OR SUBSTANCES DURING THE MIXING OF
INCOMPATIBLE WASTES AND THE TREATMENT OF IGNITABLE OR REACTIVE WASTES.
THE PROPOSED DEFINITION OF INCOMPATIBLE WASTES, APPENDIX I TO SUBPART D
OF PROPOSED PART 250, AND THE NOTE TO PROPOSED SECTION 250.45(C)
INDICATED THAT A VARIETY OF SUBSTANCES AND REACTIONS WERE OF CONCERN.
THE PRESENT DEFINITION AND SUBSTANTIVE REGULATIONS HAVE BEEN DRAWN FROM
THESE PROPOSED REGULATIONS WITH SOME MODIFICATIONS.
THE REGULATIONS AND APPENDIX V HAVE BEEN COORDINATED, AS SUGGESTED IN
PART BY ONE COMMENTER. SEVERAL STANDARDS HAVE BEEN DELETED. THE PART
OF THE PROPOSED DEFINITION CONCERNING THE VOLATILIZATION OF IGNITABLE
AND TOXIC CHEMICALS HAS BEEN PARTLY SUBSUMED INTO THE PARTS COVERING
PRODUCTION OF FLAMMABLE OR TOXIC FUMES AND GASES.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 031 OF 106
COSTLE D M ADMINISTRATOR
EPA
113395
REGULATION
AS EXPLAINED ELSEWHERE, FURTHER REGULATION OF VOLATILE WASTE IS BEING
POSTPONED. THE PART OF THE PROPOSED DEFINITION COVERING
SHOCK-SENSITIVE, FRICTION-SENSITIVE, AND SIMILARLY UNSTABLE SUBSTANCES
HAS BEEN DELETED BECAUSE REACTIVE SUBSTANCES ARE ADEQUATELY COVERED IN
THE SECTIONS DEALING DIRECTLY WITH THEM, AND THERE ARE FEW OR NO DAMAGE
INCIDENTS RESULTING FROM THE PRODUCTION OF SUCH SUBSTANCES FROM
NON-REACTIVE WASTES. THE DETAILED AIR EMISSION FORMULAS IN THE NOTE TO
PROPOSED SECTION 250.45(C) HAVE BEEN ELIMINATED IN RESPONSE TO COMMENTS
THAT THE OSHA STANDARDS EMPLOYED THERE WERE NOT GENERALLY APPROPRIATE
FOR THE CIRCUMSTANCES OF WASTE TREATMENT, STORAGE, AND DISPOSAL
FACILITIES.
FINALLY, APPENDIX I TO SUBPART D OF PROPOSED PART 250 INDICATED IN
GROUPS 2-A AND 2-B THAT TOXIC WASTES WERE INCOMPATIBLE WITH FLAMMABLE OR
EXPLOSIVE WASTES BECAUSE MIXTURES OF THEM WOULD RELEASE TOXIC SUBSTANCES
IN FIRES OR EXPLOSIONS. NO COMMENTS WERE RECEIVED ON THIS STANDARD, BUT
THE AGENCY IS STILL CONSIDERING WHETHER AND HOW TOXIC AND IGNITABLE,
FLAMMABLE, OR REACTIVE WASTES OR MATERIALS SHOULD BE SEGREGATED DURING
TREATMENT, STORAGE, OR DISPOSAL IN ORDER TO AVOID THE RELEASE OF TOXIC
SUBSTANCES IN CASE OF FIRE OR EXPLOSION. THE PROBLEM IS COMPOUNDED BY
THE FACT THAT SOME TOXIC SUBSTANCES ARE THEMSELVES IGNITABLE, FLAMMABLE,
OR REACTIVE. THIS PORTION OF THE APPENDIX (NOW APPENDIX V TO PART 265)
HAS BEEN DELETED FOR THE TIME BEING, AND THE AGENCY SOLICITS COMMENTS ON
THIS PROBLEM.
MANY COMMENTERS POINTED OUT THAT INCOMPATIBLE WASTES SUCH AS
ACIDS AND BASES ARE FREQUENTLY MIXED SO THAT THEY WILL NEUTRALIZE
EACH OTHER, AND THAT THIS MAY BE DONE SAFELY SO THAT VIOLENT
REACTIONS ARE AVOIDED. CONSEQUENTLY, THE REGULATIONS HAVE BEEN
MODIFIED TO ALLOW MIXING INCOMPATIBLE WASTES IF THE GENERAL
STANDARDS DESCRIBED BELOW ARE COMPLIED WITH. IN ADDITION,
CONTRARY TO THE CONTENTION OF ONE COMMENTER, MATERIALS OTHER
THAN WASTES, SUCH AS TREATMENT REAGENTS OR NON-HAZARDOUS
WASTES, MAY BE INCOMPATIBLE WITH HAZARDOUS WASTES AND ARE
THEREFORE INCLUDED IN THE INCOMPATIBLE WASTE REGULATIONS. THESE
REQUIREMENTS HAVE BEEN EXTENDED TO STORAGE FACILITIES AS WELL
AS TREATMENT AND DISPOSAL FACILITIES, BECAUSE THEY CAN EXPERIENCE
SIMILAR PROBLEMS WHEN INCOMPATIBLE WASTES ARE MIXED. IF FACILITY
OPERATORS MIX INCOMPATIBLE WASTES, THEY MUST ANTICIPATE THE
REACTIONS WHICH MAY OCCUR AND THE SUBSTANCES WHICH MAY BE FORMED,
AND CONTROL THE MIXING SO AS TO AVOID OR CONTROL THE REACTIONS
AND SUBSTANCES PRODUCED.
THE GENERAL STANDARDS IN SECTION 265.17(B) ARE INTENDED TO INSURE
THAT SEVERAL UNDESIRABLE RESULTS ARE AVOIDED WHEN IGNITABLE OR REACTIVE
WASTES ARE HANDLED OR INCOMPATIBLE WASTES ARE MIXED. EXTREME HEAT OR
PRESSURE, FIRES OR EXPLOSIONS, VIOLENT REACTIONS, AND DAMAGE TO THE
STRUCTURAL INTEGRITY OF THE DEVICE OR FACILITY CONTAINING THE WASTE ARE
CLEARLY UNDESIRABLE BECAUSE OF THE LIKELIHOOD THAT THEY WILL CAUSE OR
LEAD TO INJURY OR DEATH OF FACILITY PERSONNEL, AND THE SPREAD OF TOXIC
WASTES INTO THE ENVIRONMENT. THESE STANDARDS WERE UNCONTROVERSIAL. THE
PRODUCTION OF UNCONTROLLED FLAMMABLE FUMES OR GASES IN SUFFICIENT
QUANTITIES TO POSE THE RISK OF FIRE OR EXPLOSION IS UNDESIRABLE FOR
SIMILAR REASONS. THE CREATION OF UNCONTROLLED TOXIC DUSTS, MISTS,
FUMES, AND GASES IN SUFFICIENT QUANTITIES TO THREATEN HUMAN HEALTH IS
ALSO PROHIBITED, IN ORDER TO PROTECT BOTH FACILITY PERSONNEL AND PEOPLE
OFF-SITE. THE AGENCY IS PRIMARILY CONCERNED HERE WITH GASES SUCH AS
CHLORINE, HYDROGEN SULFIDE, AND HYDROGEN CYANIDE, WHICH SOME MIXTURES OF
WASTES OR WASTE TREATMENT PROCESSES MAY PRODUCE. AS EXPLAINED ELSEWHERE
THE AGENCY NEED NOT RELY ON THE CLEAN AIR ACT TO REGULATE AIRBORNE
EMISSIONS FROM HAZARDOUS WASTE FACILITIES.
FINALLY, BECAUSE THE POSSIBLE UNDESIRABLE RESULTS FROM THE MIXING OR
HANDLING OF WASTES MAY BE ENORMOUSLY VARIED, THE GENERAL REGULATIONS
PROHIBIT THE CREATION OF CONDITIONS LIKE THE ONES MENTIONED ABOVE WHICH
THREATEN HUMAN HEALTH OR THE ENVIRONMENT. THIS STANDARD REQUIRES OWNERS
AND OPERATORS OF FACILITIES TO BE AWARE OF THE POSSIBLE RESULTS OF
TREATMENT, STORAGE, OR DISPOSAL OF IGNITABLE OR REACTIVE WASTES, AND THE
COMMINGLING OF INCOMPATIBLE WASTES, TO AVOID CONDITIONS WHICH WOULD POSE
THREATS TO HUMAN HEALTH OR THE ENVIRONMENT SIMILAR TO THE ONES
SPECIFICALLY LISTED IN THE REGULATION.
THE REGULATIONS ON IGNITABLE OR REACTIVE WASTES ARE TYPICALLY MORE
RESTRICTIVE THAN THOSE ON INCOMPATIBLE WASTES. WHILE INCOMPATIBLE
WASTES REQUIRE ATTENTION PRIMARILY AT THE TIME THEY ARE INTRODUCED INTO
A FACILITY OR TREATMENT PROCESS, IGNITABLE OR REACTIVE WASTES POSE A
CONTINUING DANGER OF IGNITION OR REACTION, AND REQUIRE CONTINUING
PROTECTION FROM CONDITIONS WHICH WOULD CAUSE THEM TO IGNITE OR REACT.
THIS IS SOMETIMES PRACTICAL IN CONTAINERS, TANKS, AND WASTE PILES.
HOWEVER, SINCE LANDFILLS, SURFACE IMPOUNDMENTS, AND LAND TREATMENT
FACILITIES GENERALLY CANNOT BE MANAGED SO THAT THIS PROTECTION IS
PROVIDED, IGNITABLE OR REACTIVE WASTES MAY BE PLACED IN SUCH FACILITIES
ONLY IF THEY ARE TREATED BEFORE OR IMMEDIATELY AFTER PLACEMENT IN THE
FACILITY SO THAT THEY ARE NO LONGER IGNITABLE OR REACTIVE. THIS
RELAXATION OF THE COMPLETE BAR IN THE PROPOSED RULE RESPONDS TO COMMENTS
INDICATING THAT SUCH TREATMENT IS NOT UNCOMMON AND SHOULD NOT BE
PROHIBITED. THE REGULATIONS REQUIRE THAT THIS TREATMENT MEET THE SAME
STANDARDS APPLIED TO THE MIXING OF INCOMPATIBLE WASTES.
THE AGENCY IS CURRENTLY CONSIDERING ADDING ANOTHER CLASS OF
INCOMPATIBLE WASTES TO THESE REGULATIONS. IT WOULD DECLARE INCOMPATIBLE
THOSE WASTES WHICH WOULD SOLUBILIZE OR OTHERWISE MOBILIZE ANOTHER
HAZARDOUS WASTE OR CONSTITUENT IN A LANDFILL, LAND TREATMENT FACILITY,
OR SURFACE IMPOUNDMENT, AND THUS INCREASE THE LIKELIHOOD THAT THE
MOBILIZED WASTE OR CONSTITUENT WOULD BE LEACHED INTO GROUND WATER.
BECAUSE THE POTENTIAL SCOPE OF THIS CONCEPT IS SO BROAD -- EVEN WATER
COULD BE CONSIDERED INCOMPATIBLE WITH MANY WASTES -- THE AGENCY
CURRENTLY BELIEVES THAT IT WOULD BE MOST PRACTICAL TO IMPLEMENT SUCH A
REGULATION BY LISTING ONLY SPECIFIED PAIRS OF WASTES AS BEING
INCOMPATIBLE. THOSE CURRENTLY UNDER CONSIDERATION ARE:
(1) PCBS AND ORGANIC SOLVENTS,
(2) ORGANIC PESTICIDES AND ORGANIC SOLVENTS, AND
(3) METAL-CONTAINING WASTES AND ACIDS. THE FIST MATERIAL IN EACH OF
THESE PAIRS CAN BE SUBSTANTIALLY MOBILIZED BY THE SECOND, BUT MAY BE
RELATIVELY IMMOBILE IN ITS ABSENCE. IT THEREFORE SEEMS PRUDENT TO
DISPOSE OF SUCH PAIRS IN SEPARATE LANDFILL CELLS, LAND TREATMENT AREAS,
OR IMPOUNDMENTS. THE AGENCY REQUESTS COMMENT ON THIS CONCEPT OF
INCOMPATIBILITY, ON THESE AND OTHER POSSIBLE PAIRS OF WASTES WHICH MIGHT
BE LISTED AS INCOMPATIBLE UNDER THIS STANDARD, AND ON CIRCUMSTANCES
UNDER WHICH THESE WASTES CAN SAFELY BE COMMINGLED IN LAND DISPOSAL
FACILITIES.
C. SUBPART C -- PREPAREDNESS AND PREVENTION AND SUBPART D
CONTINGENCY PLAN AND EMERGENCY PROCEDURES
SECTION 250.43-3 OF THE PROPOSED RULES CONTAINED THREE GENERAL TYPES
OF PROVISIONS: (1) REQUIREMENTS FOR DEVELOPING CONTINGENCY PLANS FOR
EFFECTIVE ACTION TO MINIMIZE UNANTICIPATED DAMAGE FROM THE TREATMENT
STORAGE, OR DISPOSAL OF HAZARDOUS WASTE; (2) REQUIREMENTS FOR
PREPAREDNESS AND PREVENTION MEASURES TO MINIMIZE THE NEED FOR EVER USING
CONTINGENCY PLANS, AND (3) REQUIREMENTS FOR EMERGENCY RESPONSE MEASURES
TO BE TAKEN DURING AND AFTER SITUATIONS IN WHICH A CONTINGENCY PLAN IS
IMPLEMENTED.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 032 OF 106
COSTLE D M ADMINISTRATOR
EPA
113396
REGULATION
IN THE FINAL RULES, STANDARDS FOR PREPAREDNESS AND PREVENTION HAVE BEEN
MADE A SEPARATE SUBPART BECAUSE: (1) THEY CONTAIN EXPLICIT FACILITY
REQUIREMENTS (E.G., FIRE PROTECTION EQUIPMENT, AND AISLE SPACE) WHICH
ARE INDEPENDENT OF THE IMPLEMENTATION OF A FACILITY CONTINGENCY PLAN;
(2) IT IS MORE LOGICAL TO DISCUSS PREPAREDNESS AND PREVENTION ASPECTS OF
FACILITY OPERATIONS BEFORE DISCUSSING PLANNING FOR AND RESPONSE TO
EMERGENCIES WHICH MAY OR MAY NOT OCCUR; AND (3) PLACEMENT OF THE THREE
TYPES OF STANDARDS IN THE SAME SECTION IN THE PROPOSED RULES TENDED TO
BE CONFUSING BECAUSE THE REQUIREMENTS FOR DEVELOPING AND IMPLEMENTING
THE CONTINGENCY PLAN WERE INTERSPERSED WITH REQUIREMENTS FOR
PREPAREDNESS AND PREVENTION. HOWEVER, PREPAREDNESS AND PREVENTION,
CONTINGENCY PLANS, AND EMERGENCY RESPONSE ARE ALL DISCUSSED IN THIS
SECTION OF THE PREAMBLE BECAUSE THEY ARE CLOSELY RELATED, AND MANY OF
THE COMMENTS RECEIVED ON THESE REQUIREMENTS ADDRESSED ALL OF THEM
SIMULTANEOUSLY.
THE FINAL PART 264 AND 265 SUBPART C PREPAREDNESS AND PREVENTION
RULES ARE INTENDED TO MINIMIZE THE POSSIBILITY OF AND EFFECT OF A
RELEASE, FIRE, OR EXPLOSION WHICH COULD THREATEN HUMAN HEALTH OR THE
ENVIRONMENT. THEY REQUIRE THAT FACILITIES HAVE, WHERE NECESSARY,
INTERNAL COMMUNICATIONS OR ALARM SYSTEMS, EQUIPMENT CAPABLE OF SUMMONING
EXTERNAL EMERGENCY ASSISTANCE FROM LOCAL AGENCIES, FIRE CONTROL
EQUIPMENT, SPILL CONTROL EQUIPMENT, AND DECONTAMINATION EQUIPMENT. THIS
EQUIPMENT, WHERE REQUIRED, MUST BE ROUTINELY TESTED, AND MAINTAINED IN
PROPER OPERATING CONDITION.
SUBPART C ALSO REQUIRES THAT EMPLOYEES OPERATING THE FACILITY HAVE
IMMEDIATE ACCESS TO BOTH INTERNAL AND EXTERNAL COMMUNICATIONS SYSTEMS,
WHERE THESE ARE REQUIRED. IN ADDITION, WHERE NEEDED, AISLE SPACE MUST
BE MAINTAINED TO ALLOW THE UNOBSTRUCTED MOVEMENT OF EMERGENCY EQUIPMENT
TO ANY AREA OF FACILITY OPERATION. PRECAUTIONS TO PREVENT ACCIDENTAL
IGNITION OR REACTION OF WASTE ARE SPECIFIED. AND LASTLY, FACILITY
OWNERS OR OPERATORS MUST ATTEMPT TO MAKE ARRANGEMENT FOR LOCAL AUTHORITY
TO PROVIDE EMERGENCY SUPPORT, WHERE THIS IS APPROPRIATE.
THE FINAL PART 264 AND 265 SUBPART D CONTINGENCY PLAN RULES ARE
INTENDED TO MINIMIZE HAZARDS TO HUMAN HEALTH AND ENVIRONMENT IN THE
EVENT OF FIRES, EXPLOSIONS, OR ANY UNPLANNED SUDDEN OR NON-SUDDEN
RELEASE OF HAZARDOUS WASTE TO AIR, SOIL, OR SURFACE WATER. THE
CONTINGENCY PLAN MUST INCLUDE:
A DESCRIPTION OF THE PLANNED RESPONSE TO EMERGENCIES AT THE FACILITY,
ANY ARRANGEMENTS WITH LOCAL AND STATE AGENCIES TO PROVIDE EMERGENCY
RESPONSE SUPPORT, WHERE NEEDED,
A LIST OF THE FACILITY'S EMERGENCY COORDINATORS,
A LIST OF THE FACILITY'S EMERGENCY EQUIPMENT, AND
AN EVACUATION PLAN, WHERE NECESSARY.
RULES FOR DISTRIBUTING AND AMENDING THE PLAN ARE SPECIFIED, AS IS THE
REQUIREMENT THAT A FACILITY EMERGENCY COORDINATOR BE EITHER PRESENT, OR
ON CALL, WHENEVER THE FACILITY IS IN OPERATION.
PROVISIONS FOR EMERGENCY PROCEDURES SPECIFIED IN SUBPART D OF THE
FINAL RULES INCLUDE:
IMMEDIATE NOTIFICATION OF EMPLOYEES, AND LOCAL, STATE AND FEDERAL
AUTHORITIES OF ANY IMMINENT OR ACTUAL EMERGENCIES,
IMMEDIATE ASSESSMENT OF POSSIBLE HAZARDS TO THE ENVIRONMENT
AND HUMAN HEALTH OUTSIDE THE FACILITY,
MEASURES TO PRECLUDE THE SPREAD OF FIRES AND EXPLOSIONS TO OTHER
WASTE,
PROPER MANAGEMENT OF RESIDUES,
REHABILITATION OF EMERGENCY EQUIPMENT AND NOTIFICATION OF AUTHORITIES
BEFORE OPERATIONS ARE RESUMED, AND
RECORDKEEPING AND REPORTING TO EPA ON THE NATURE AND CONSEQUENCES OF
ANY INCIDENT THAT REQUIRES IMPLEMENTING THE CONTINGENCY PLAN.
COMMENTERS FROM MANY ORGANIZATIONS SUBMITTED NUMEROUS COMMENTS ON THE
PROPOSED REQUIREMENTS FOR CONTINGENCY PLANS, PREPAREDNESS, AND EMERGENCY
RESPONSE. HIGHLIGHTS OF THESE ISSUES ARE DISCUSSED BELOW:
1. DEFER REGULATIONS UNTIL PERMIT ISSUED. SOME COMMENTERS SUGGESTED
THAT THE CONTINGENCY PLAN, PREPAREDNESS, AND EMERGENCY RESPONSE
REQUIREMENTS SHOULD BE NEGOTIATED WHEN A PERMIT IS ISSUED, AND THUS
SHOULD NOT APPLY TO FACILITIES DURING THE INTERIM STATUS PERIOD.
THE AGENCY SEES NO REASON TO DELAY IMPLEMENTING THESE REQUIREMENTS
UNTIL A PERMIT IS ISSUED. MOST OF THE REQUIREMENTS ARE EXPLICIT AND
STRAIGHTFORWARD, AND THEREFORE, DO NOT REQUIRE NEGOTIATION WITH OR
INTERPRETATION BY THE REGIONAL ADMINISTRATOR BEFORE THEY CAN BE
IMPLEMENTED. THOSE PROPOSED REQUIREMENTS WHICH MIGHT HAVE BEEN
INTERPRETED AS REQUIRING NEGOTIATION WITH EPA, HAVE BEEN REWRITTEN TO
ELIMINATE THE NEED FOR INTERACTION WITH THE AGENCY DURING THE INTERIM
STATUS PERIOD. FOR THIS REASON, SOME OF THE FINAL PART 265 RULES
APPLICABLE DURING INTERIM STATUS ARE WRITTEN DIFFERENTLY THAN THE
CORRESPONDING PART 264 RULES.
2. TAILOR RULES TO CIRCUMSTANCES. MANY COMMENTERS FELT THAT THE
PROPOSED CONTINGENCY PLAN, PREPAREDNESS, AND EMERGENCY RESPONSE
PROVISIONS SHOULD BE RESTRUCTURED TO ALLOW REQUIREMENTS TO BE TAILORED
TO PARTICULAR CIRCUMSTANCES. IN THE SAME VEIN, OTHER COMMENTERS
COMPLAINED THAT THE PROPOSED PROVISIONS WERE OVERLY RESTRICTIVE FOR SOME
TYPES OF FACILITIES (E.G., FACILITIES WHICH HANDLED ONLY "LOW" HAZARD
WASTE, SUCH AS UTILITY BOILER FLY ASH OR WASTE OIL).
THE AGENCY RECOGNIZES THAT THERE ARE DIFFERENT TYPES OF FACILITIES
HANDLING MANY DIFFERENT KINDS OF WASTES IN WIDELY DIFFERING
CIRCUMSTANCES WITH RESPECT TO CLIMATE, PROXIMITY TO PEOPLE, ETC. IN THE
PROPOSED RULES, THE "NOTES" FOLLOWING CERTAIN PROVISIONS PROVIDED SOME
FLEXIBILITY TO ACCOUNT FOR THESE DIFFERENCES. IN THE FINAL RULES, THESE
"NOTES" HAVE BEEN INCORPORATED INTO THE REGULATIONS. FURTHER, THE
AGENCY HAS EXPANDED THE CONCEPT OF CASE-BY-CASE DETERMINATION OF
APPROPRIATE REQUIREMENTS WITH MANY REVISIONS THROUGHOUT THE FINAL RULES
TO PROVIDE GREATER FLEXIBILITY. IN ADDITION, REQUIREMENTS SPECIFIC TO
PARTICULAR CIRCUMSTANCES (E.G., IGNITABLE AND REACTIVE WASTE) HAVE BEEN
CLEARLY IDENTIFIED IN THE FINAL RULES.
3. PROTECTION INSIDE VERSUS OUTSIDE FACILITIES. SEVERAL COMMENTERS
QUESTIONED WHETHER THE PROPOSED CONTINGENCY PLAN AND EMERGENCY RESPONSE
PROVISIONS WERE DESIGNED TO DEAL WITH THE POTENTIAL FOR DAMAGE TO HUMAN
HEALTH AND THE ENVIRONMENT BOTH INSIDE AND OUTSIDE HAZARDOUS WASTE
FACILITIES.
RCRA'S MANDATE TO PROTECT HUMAN HEALTH AND THE ENVIRONMENT IS NOT
LIMITED TO DANGERS OCCURRING OUTSIDE HAZARDOUS WASTE MANAGEMENT
FACILITIES. IN FACT, MANY OF THE DAMAGE CASES CITED IN THE BACKGROUND
DOCUMENTS INVOLVE DEATH OR INJURY TO FACILITY PERSONNEL, AS WELL AS
THREATS TO PEOPLE OUTSIDE THE FACILITY.
THE AGENCY IS CONCERNED ABOUT THE HEALTH AND SAFETY OF FACILITY
PERSONNEL. THE RCRA SECTION 3002 REGULATIONS FOR WASTE MANIFESTS AND
WASTE SHIPPING CONTAINER LABELING AND MARKING, AND THE SECTION 3004
WASTE ANALYSIS, TRAINING, INSPECTION, AND FACILITY DESIGN AND OPERATION
REGULATIONS , ARE DESIGNED, AMONG OTHER THINGS, TO REDUCE HAZARDS TO
FACILITY PERSONNEL.
IN ADDITION, THE RCRA CONTINGENCY AND EMERGENCY RESPONSE PLANS SHOULD
INCLUDE STEPS TO RESPOND TO BOTH INTERNAL AND EXTERNAL THREATS.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 033 OF 106
COSTLE D M ADMINISTRATOR
EPA
113397
REGULATION
IN DESIGNING INTERNAL PLANS TO RESPOND TO EMPLOYEE HEALTH THREATS,
HOWEVER, RESPONDENTS MUST RECOGNIZE THAT PRIMARY RESPONSIBILITY FOR
REGULATING WORKPLACE HEALTH AND SAFETY RESTS WITH THE OCCUPATIONAL
SAFETY AND HEALTH ADMINISTRATION OF THE DEPARTMENT OF LABOR.
4. DELETE CONTINGENCY PLAN. SOME COMMENTERS FELT THAT THE PROVISION
REGARDING THE PROPOSED CONTINGENCY PLAN PROVISION WAS UNNECESSARY AND
SHOULD BE DELETED, BECAUSE THE SPILL PREVENTION, CONTROL, AND
COUNTERMEASURES (SPCC) PLAN REQUIRED BY THE CLEAN WATER ACT WOULD BE
SUFFICIENT TO FULFILL CONTINGENCY PLANNING REQUIREMENTS FOR HAZARDOUS
WASTE MANAGEMENT FACILITIES.
THE AGENCY DISAGREES WITH THIS COMMENT. THE UNIVERSE OF FACILITIES
WHICH ARE CURRENTLY REQUIRED TO HAVE AN SPCC PLAN IS NOT IDENTICAL TO
THE UNIVERSE OF HAZARDOUS WASTE FACILITIES CONTROLLED UNDER RCRA.
FURTHER, THE PROPOSED RULES FOR RCRA CONTINGENCY PLANS ARE NOT IDENTICAL
TO THE SPCC PLAN REQUIREMENTS, AND THE SPCC PLAN IS NOT AN ADEQUATE
SUBSTITUTE FOR RCRA CONTINGENCY PLAN REQUIREMENTS. HOWEVER, THE TWO
PLANS CAN BE COMPLEMENTARY. (SEE LATER DISCUSSION.)
5. GROUND-WATER CONTAMINATION. COMMENTERS WERE CONCERNED THAT THE
PROPOSED RULES SEEMED TO ADDRESS ONLY ACUTE EMERGENCIES, AND ARGUED THAT
THE CONTINGENCY PLAN SHOULD INCLUDE THE RESPONES TO BE TAKEN IF
GROUND-WATER CONTAMINATION WERE DETECTED.
THE AGENCY AGREES THAT THE DISCHARGE OF ANY HAZARDOUS WASTE, WHETHER
SUDDEN OR NON-SUDDEN, IS A POTENTIAL THREAT TO PEOPLE OR THE
ENVIRONMENT, AND THEREFORE, IS OF CONCERN TO THE AGENCY. HOWEVER, THE
AGENCY HAS CONCLUDED THAT THE GROUND-WATER MONITORING REGULATIONS,
RATHER THAN THE CONTINGENCY PLAN REGULATIONS, ARE THE APPROPRIATE PLACE
TO DEAL WITH CONTINGENCY PLANNING AND RESPONSE TO GROUND-WATER
CONTAMINATION INCIDENTS. THE FINAL GROUND-WATER MONITORING RULES
INCLUDE REQUIREMENTS FOR EVALUATING GROUND-WATER ANALYSES, AND
REQUIREMENTS FOR PLANNING AND DESCRIBING THE RESPONSE REQUIRED WHERE A
POTENTIAL GROUND-WATER PROBLEM IS IDENTIFIED.
6. IMPLEMENTATION OF THE CONTINGENCY PLAN. SEVERAL COMMENTERS
SUGGESTED THAT THE FINAL RULES SHOULD MAKE IT CLEAR THAT THE PROVISIONS
OF THE CONTINGENCY PLAN NEED ONLY BE IMPLEMENTED IN THE EVENT OF A
DISCHARGE OR RELEASE OF HAZARDOUS WASTE FROM THE FACILITY WHICH HAS THE
POTENTIAL FOR DAMAGING HUMAN HEALTH OR THE ENVIRONMENT.
IT WAS NOT THE AGENCY'S INTENTION TO REQUIRE FACILITY OWNERS OR
OPERATORS TO INVOKE THEIR CONTINGENCY PLAN WHEN INSIGNIFICANT AMOUNTS OF
HAZARDOUS WASTE ARE RELEASED (E.G., VERY SMALL SPILLS OR A LEAKING
VALVE). THE FINAL RULES HAVE BEEN REWORDED TO BETTER REFLECT THE
AGENCY'S ORIGINAL INTENT.
7. SUBMISSION OF CONTINGENCY PLANS. THE PROPOSED RULES REQUIRED
THAT COPIES OF THE CONTINGENCY PLAN AND ANY AMENDMENTS BE FILED, AS SOON
AS THEY WERE PREPARED, WITH THE REGIONAL ADMINISTRATOR, AND LOCAL
AGENCIES THAT MIGHT BE CALLED UPON TO PROVIDE EMERGENCY SERVICES. ALSO,
THE CONTINGENCY PLAN WAS TO BE SUBMITTED TO THE REGIONAL ADMINISTRATOR
AS PART OF THE FACILITY PERMIT APPLICATION. MANY COMMENTERS ARGUED THAT
FACILITY OWNERS OR OPERATORS SHOULD BE REQUIRED TO MAINTAIN CONTINGENCY
PLANS ON FILE, BUT NOT BE REQUIRED TO SUBMIT PLANS AND AMENDMENTS TO THE
REGIONAL ADMINISTRATOR OR TO LOCAL EMERGENCY OR HEALTH AGENCIES. THE
COMMENTERS OFFERED THE FOLLOWING REASONS TO SUPPORT THEIR POSITION:
SPCC PLANS ARE REQUIRED TO BE AVAILABLE FOR INSPECTION, BUT ARE NOT
REQUIRED TO BE SUBMITTED; RCRA PLAN REQUIREMENTS SHOULD BE CONSISTENT
WITH THIS.
CONTINGENCY PLANS ARE AMENDED FREQUENTLY; IT IS BURDENSOME TO
EVERYONE TO FILE AMENDED PLANS.
LOCAL AUTHORITIES MAY REFUSE TO ACCEPT PLANS; THEREFORE, THE RULE IS
UNENFORCEABLE.
PLANS SUBMITTED TO LOCAL AUTHORITIES ARE RELEGATED TO OBSCURE FILES;
THEREFORE, THE RULE IS USELESS.
SIMILARLY, SOME COMMENTERS FELT THAT CONTINGENCY PLANS SHOULD BE
FILED WITH LOCAL AUTHORITIES ONLY WHEN A RELEASE OF HAZARDOUS WASTE
WOULD REQUIRE THEIR RESPONSE OR ENDANGER THOSE UNDER THEIR PROTECTION,
OR WHEN A FACILITY HANDLES "EXTREMELY" HAZARDOUS WASTE.
THE AGENCY BELIEVES THAT THE CONTINGENCY PLAN REQUIREMENT IS AN
IMPORTANT PART OF THE OVERALL RCRA SECTION 3004 STANDARDS, AND THAT EPA
SHOULD ENSURE THAT EACH FACILITY HAS AN ACCEPTABLE PLAN. BECAUSE THE
AGENCY ACCOMPLISHES THIS BY REQUIRING THAT A CONTINGENCY PLAN BE:
PREPARED BY EACH FACILITY,
AMENDED AS NECESSARY,
MADE AVAILABLE TO EPA INSPECTORS DURING ON-SITE REVIEWS, OR TO THE
REGIONAL ADMINISTRATOR WHEN REQUESTED, AND
SUBMITTED TO EPA AS PART OF THE PERMIT APPLICATION, THE AGENCY AGREES
THAT CONTINGENCY PLANS AND REVISIONS NEED NOT BE SUBMITTED ROUTINELY TO
EPA. THIS APPROACH IS CONSISTENT WITH SPCC PLAN REQUIREMENTS, WHICH ARE
BEING REVISED TO REQUIRE THAT PLANS BE SUBMITTED TO EPA ONLY UPON
REQUEST OF THE REGIONAL ADMINISTRATOR.
HOWEVER, THE AGENCY DISAGREES WITH THE COMMENTER'S ARGUMENTS
REGARDING THE NEED FOR LOCAL AUTHORITIES TO HAVE AN UP-TO-DATE
FACILITY CONTINGENCY PLAN. THE FINAL RULES REQUIRE THAT THE
CONTINGENCY PLAN MUST BE AMENDED IN THE FOLLOWING CASES:
IF THERE ARE REVISIONS TO APPLICABLE REGULATIONS (INTERIM STATUS);
IF THERE ARE REVISIONS TO THE FACILITY PERMIT (PERMITTED STATUS);
IF THE PLAN FAILS IN AN EMERGENCY;
IF THERE ARE CHANGES IN THE FACILITY DESIGN, CONSTRUCTION, OPERATION,
MAINTENANCE, OR OTHER CIRCUMSTANCES THAT MATERIALLY INCREASE THE
POTENTIAL FOR FIRES, EXPLOSSIONS, OR RELEASES OF HAZARDOUS WASTE OR
CHANGE THE RESPONSE NECESSARY IN AN EMERGENCY;
IF THERE ARE CHANGES IN THE PERSON(S) QUALIFIED TO ACT AS FACILITY
EMERGENCY COORDINATOR;
IF THERE ARE CHANGES IN THE EMERGENCY EQUIPMENT AT THE FACILITY.
THE AGENCY BELIEVES THAT ALL THESE REASONS FOR AMENDING THE PLAN ARE
IMPORTANT, AND THAT LOCAL AUTHORITIES, WHERE APPROPRIATE, HAVE A NEED TO
KNOW ABOUT THESE CHANGES. THE FIRST FOUR CASES COULD INVOLVE
SIGNIFICANT AMENDMENTS TO A FACILITY'S CONTINGENCY PLAN, BUT SUCH
AMENDMENTS SHOULD OCCUR INFREQUENTLY. THE LAST TWO CASES MAY OCCUR MORE
OFTEN, BUT THE CHANGE AND NOTIFICATION REQUIREMENTS ARE NOT BURDENSOME.
THE PROPOSED RULE REQUIRED FACILITY OWNERS OR OPERATORS TO FILE
CONTINGENCY PLANS WITH LOCAL AUTHORITIES. IT DID NOT REQUIRE THESE
AUTHORITIES TO ACCEPT THEM. THE AGENCY BELIEVES THAT MOST LOCAL
AUTHORITIES ARE RESPONSIBLE AND COMPETENT, AND THAT THEY RARELY WILL
REJECT FACILITY PLANS OR RELEGATE THEM TO OBSCURE FILES. NEVERTHELESS,
IF THEY DO REFUSE TO ACCEPT A FACILITY'S PLAN, THE FACILITY OWNER OR
OPERATOR WILL HAVE COMPLIED WITH THE RULE IF HE CAN DOCUMENT IN THE
OPERATING RECORD THAT HE SUBMITTED A CONTINGENCY PLAN TO LOCAL
AUTHORITIES.
THE PROPOSED RULES USED THE PHRASE ". . . WHO MAY BE CALLED UPON TO
PROVIDE EMERGENCY SERVICES." THIS PHRASE MEANS THAT A CONTINGENCY PLAN
NEED NOT BE FILED WITH LOCAL AUTHORITIES IF THE NATURE OF THE WASTE
HANDLED AT A FACILITY, OR IF THE INTERNAL EMERGENCY RESPONSE
CAPABILITIES AT THE FACILITY, ARE SUCH THAT LOCAL AUTHORITIES WILL NOT
BE CALLED UPON TO PROVIDE SERVICES EITHER TO THE FACILITY OR TO PEOPLE
OUTSIDE THE FACILITY. THIS PROVISION HAS BEEN RETAINED IN THE FINAL
RULES.
8. CONFIDENTIAL INFORMATION. SEVERAL COMMENTERS CLAIMED THAT
FACILITY CONTINGENCY PLANS FREQUENTLY CONTAIN CONFIDENTIAL INFORMATION
WHICH COMPANIES WOULD INSIST NOT BE MAINTAINED IN PUBLIC FILES.
THEREFORE, THE COMMENTERS FELT CONTINGENCY PLANS SHOULD NOT BE SUBMITTED
TO EPA (OR BY EXTENSION, TO LOCAL AUTHORITIES) BUT RATHER MAINTAINED ON
THE FACILITY PREMISES OPEN TO EPA INSPECTION.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 034 OF 106
COSTLE D M ADMINISTRATOR
EPA
113398
REGULATION
THE CONTINGENCY PLAN MUST BE SUBMITTED TO EPA WITH PART B OF THE
PERMIT APPLICATION UNDER 40 CFR PART 122, AND WILL BECOME A CONDITION OF
ANY PERMIT ISSUED. THE PERMIT REGULATIONS STATE THAT PERMIT-RELATED
INFORMATION, ASSERTED TO BE CONFIDENTIAL AT THE TIME IT IS SUBMITTED,
WILL BE DISCLOSED BY EPA ONLY IN ACCORDANCE WITH THE PROCEDURES IN 40
CFR PART 2. BECAUSE THE CONTINGENCY PLAN WILL BE PART OF THE PERMIT,
PORTIONS OF CONTINGENCY PLANS ASSERTED TO BE CONFIDENTIAL WILL BE
AVAILABLE TO THE PUBLIC ONLY IN ACCORDANCE WITH 40 CFR PART 2.
AS STATED EARLIER, THE AGENCY BELIEVES THAT WHERE APPROPRIATE TO
PROTECT HUMAN HEALTH AND THE ENVIRONMENT IN EMERGENCIES, IT IS VITAL
THAT LOCAL AUTHORITIES HAVE UP-TO-DATE FACILITY CONTINGENCY PLANS IN
THEIR POSSESSION. A FACILITY'S CONTINGENCY PLAN NEED NOT CONTAIN
DETAILS OF PROPRIETARY PROCESSES OR OPERATIONS. FOR THIS REASON, THE
AGENCY DOES NOT BELIEVE THAT CONTINGENCY PLANS OFTEN, IF EVER, NEED TO
BE CONFIDENTIAL.
9. INSUFFICIENT TIME FOR PLAN SUBMISSION. A FEW COMMENTERS STATED
THAT: "REQUIRING THE SUBMITTAL OF AN SPCC PLAN AS PART OF A (RCRA)
PERMIT APPLICATION IS UNREASONABLE SINCE THE DEVELOPMENT OF AN ADEQUATE
AND EFFECTIVE SPCC PLAN MAY REQUIRE A SIGNIFICANTLY GREATER PERIOD OF
TIME THAN AVAILABLE BETWEEN PROMULGATION OF THE (RCRA) REGULATIONS AND
SUBMISSIONS OF A (RCRA) PERMIT APPLICATION."
AS DESCRIBED IN THE PREAMBLE DISCUSSION ENTITLED "INTERIM STATUS
STANDARDS", TO QUALIFY FOR INTERIM STATUS, FACILITIES MUST SUBMIT THE
PART A PERMIT APPLICATION TO EPA WITH SIX MONTHS AFTER PROMULGATION OF
THE RCRA SECTION 3001 REGULATIONS. THEY MUST SUBMIT PART B OF THE
PERMIT APPLICATION UPON REQUEST AT A LATER DATE.
THE FACILITY CONTINGENCY PLAN MUST BE SUBMITTED WITH PART B, BUT IS
NOT REQUIRED FOR PART A. FURTHER, AS NOTED ABOVE, THE RCRA CONTINGENCY
PLAN MAY BE MERGED WITH AN EXISTING SPCC PLAN, BUT THE FINAL RULE DOES
NOT REQUIRE THAT AN SPCC PLAN BE SUBMITTED AS PART OF THE RCRA PERMIT
APPLICATION. MOREOVER, THE AGENCY BELEIVES THAT AN ACCEPTABLE RCRA
FACILITY CONTINGENCY PLAN CAN BE PREPARED WITHIN THE SIX-MONTH PERIOD
BETWEEN PROMULGATION OF THE RCRA SECTION 3001 REGULATIONS AND THE
EFFECTIVE DATE OF THESE REGULATIONS. CONSEQUENTLY, EACH FACILITY OWNER
OR OPERATOR IS REQUIRED TO HAVE A CONTINGENCY PLAN ON THE EFFECTIVE DATE
OF THESE REGULATIONS, AND TO SUBMIT IT TO APPROPRIATE LOCAL AUTHORITIES,
EVEN THOUGH IT IS NOT REQUIRED TO BE SUBMITTED TO EPA UNTIL A LATER
DATE, WITH PART B OF THE PERMIT APPLICATION.
10. EMERGENCY COORDINATOR. MANY COMMENTERS FELT IT WAS UNNECESSARY
AND BURDENSOME FOR AN EMERGENCY COORDINATOR TO BE PRESENT AT ALL TIMES
WHEN A FACILITY IS IN OPERATION, AS THE PROPOSED RULES REQUIRED. SOME
COMMENTERS POINTED OUT THAT "IN OPERATION" CAN BE INTERPRETED TO INCLUDE
PASSIVE OR AUTOMATED SITUATIONS, SUCH AS STORAGE IN TANKS OR SURFACE
IMPOUNDMENTS, BUT THAT, THE POSSIBILITY THAT AN EMERGENCY WILL OCCUR
DURING THESE SITUATIONS IS SMALL. THESE COMMENTERS SUGGESTED THAT THE
PROPOSED RULE SHOULD INCLUDE A VARIANCE WHERE EMERGENCY SITUATIONS ARE
UNLIKELY TO DEVELOP, OR THAT THE RULE BE MODIFIED TO ALLOW AN EMERGENCY
COORDINATOR TO BE ON CALL, RATHER THAN PRESENT ON-SITE.
EPA AGREES THAT THERE ARE MANY SITUATIONS WHERE THE FACILITY
EMERGENCY COORDINATOR'S PRESENCE ON-SITE IS NOT ESSENTIAL. HOWEVER, THE
AGENCY BELIEVES AN EMERGENCY COORDINATOR SHOULD AT LEAST BE AVAILABLE
(ON CALL) TO RESPOND IMMEDIATELY TO EMERGENCIES AT THE FACILITY,
INITIALLY BY GIVING PHONE INSTRUCTIONS TO LOCAL AUTHORITIES AND FACILITY
PERSONNEL, BUT ALSO BY BEING ABLE TO BE ON-THE-SCENE WITHIN A SHORT
TIME. THIS ARRANGEMENT SHOULD IMPOSE NO UNDUE BURDEN.
SEVERAL COMMENTERS FELT THAT NO ONE PERSON COULD BE COGNIZANT OF, AND
RESPONSIBLE FOR, ALL THE DUTIES OF THE EMERGENCY COORDINATRO SPECIFIED
IN THE PROPOSED RULE. THEY SUGGESTED THE RULE BE MODIFIED TO ALLOW AN
"EMERGENCY COORDINATION TEAM" UNDER THE SUPERVISION OF THE FACILITY'S
MANAGEMENT.
THE AGENCY RECOGNIZES THAT THE EMERGENCY COORDINATOR'S DUTIES ARE
MANY AND VARIED, AND FULLY EXPECTS THAT MANY PEOPLE WITH DIFFERENT
DISCIPLINES WILL BE REQUIRED TO ASSIST THE EMERGENCY COORDINATOR IN
FULFILLING THESE DUTIES. HOWEVER, BASED ON ANALYSIS OF PAST
EMERGENCIES, THE AGENCY FEELS STRONGLY THAT THERE MUST BE A SINGLE
PERSON IN CHARGE DURING AN EMERGENCY WITH THE RESPONSIBLITY AND
NECESSARY AUTHORITY TO DIRECT RESPONSE MEASURES. A "TEAM" APPROACH
DILUTES RESPONSIBILITY AND AUTHORITY, AND CAN LEAD TO DIVISIVENESS OR
CONFUSION UNDER STRESS. CONSEQUENTLY, THE AGENCY DISAGREES WITH THESE
LAST COMMENTS AND HAS RETAINED THE PROPOSED APPROACH IN THE FINAL RULE.
HOWEVER, THE FINAL RULE DOES NOT PRECLUDE THE USE OF A RESPONSE TEAM, AS
LONG AS ONE PERSON HAS CENTRAL RESPONSIBILITY OVER IT.
11. RESUMING OPERATIONS AFTER AN EMERGENCY. THE PROPOSED RULES
REQUIRED THE FACILITY'S EMERGENCY COORDINATOR TO PROHIBIT THE FACILITY
FROM ACCEPTING ANY WASTE WHICH WAS INCOMPATIBLE WITH MATERIAL RELEASED
DURING AN EMERGENCY UNTIL CLEAN-UP PROCEDURES WERE COMPLETED, EMERGENCY
EQUIPMENT WAS RESTORED TO PRE-ACCIDENT CONDITION, AND THE AFFECTED AREA
WAS DECLARED SAFE BY EPA, STATE, OR LOCAL OFFICIALS. ONE COMMENTER FELT
THAT THE DECISION THAT THE FACILITY COULD SAFELY RESUME OPERATIONS
SHOULD BE THE RESPONSIBILITY OF THE FACILITY EMERGENCY COORDINATOR,
RATHER THAN EPA OR OTHER GOVERNMENT OFFICIALS.
THE AGENCY AGREES THAT IT WOULD BE UNREASONABLE TO REQUIRE A FORMAL
DECLARATION BY GOVERNMENT OFFICIALS THAT A FACILITY IS SAFE TO OPERATE
BEFORE ALLOWING THE FACILITY TO ACCEPT POTENTIALLY INCOMPATIBLE WASTES.
IT IS QUITE POSSIBLE THAT A RELEASE, FIRE, OR EXPLOSION COULD OCCUR IN
ONE PART OF A FACILITY WITHOUT AFFECTING THE SAFETY OF OPERATIONS IN
OTHER PARTS OF THE FACILITY. THUS, IT WOULD BE UNNECESSARY TO KEEP THE
WHOLE FACILITY FROM ACCEPTING A WASTE JUST BECAUSE THE WASTE MAY BE
INCOMPATIBLE WITH THE MATERIAL RELEASED DURING AN EMERGENCY IN ONE
LIMITED PART OF THE FACILITY.
HOWEVER, EPA, STATE AND LOCAL OFFICIALS HAVE A RESPONSIBLITY TO
ENSURE THAT HUMAN HEALTH AND THE ENVIRONMENT ARE PROTECTED. THIS IS
PARTICULARLY TRUE WHERE A FACILITY HAS HAD A RELEASE, FIRE, OR EXPLOSION
OF SUFFICIENT MAGNITUDE TO INVOKE THE FACILITY'S CONTINGENCY PLAN. THE
AGENCY BELIEVES THAT THE OWNER OR OPERATOR SHOULD BE REQUIRED TO NOTIFY
EPA AND APPROPRIATE STATE AND LOCAL AUTHORITIES THAT CLEANUP PROCEDURES
FOLLOWING AN EMERGENCY HAVE BEEN COMPLETED, BEFORE THE PART(S) OF THE
FACILITY AFFECTED BY THE EMERGENCY BEGIN TO ACCEPT POTENTIALLY
INCOMPATIBLE WASTE. THIS NOTIFICATION WILL ALLOW EPA, STATE, AND LOCAL
AUTHORITIES TO BE INFORMED ABOUT THE CURRENT STATUS OF FACILITY
OPERATIONS.
RECORDKEEPING, AND REPORTING
THE PRINCIPAL PURPOSE OF THE MANIFEST SYSTEM, ESTABLISHED IN THE PART
262 REGULATIONS, IS TO TRACK HAZARDOUS WASTE FROM ITS ORIGIN WITH THE
GENERATOR, THROUGH ITS TRIP WITH THE TRAMSPORTER, TO ITS DISPOSITION AT
A TREATMENT, STORAGE, OR DISPOSAL FACILITY. THE REGULATIONS IN SUBPART
E OF PARTS 264 AND 265 SPECIFY REQUIREMENTS CONCERNING THE RETURN OF THE
MANIFEST FROM THE FACILITY OWNER OR OPERATOR TO THE GENERATOR. THESE
REQUIREMENTS FORM THE LAST STEP IN THE INFORMATION LOOP INTIATED IN THE
PART 262 MANIFEST REQUIREMENTS FOR GENERATORS.
SUBPART E OF PART 264 AND 265 ALSO INCLUDES REQUIREMENTS FOR
RECORDKEEPING AND REPORTING. ONE PURPOSE OF THESE REQUIREMENTS IS TO
ENSURE THAT THE REGULATED COMMUNITY COMPLIES WITH THE HAZARDOUS WASTE
REGULATIONS, BY PROVIDING THE ENFORCEMENT AGENCY WITH SUFFICIENT
INFORMATION TO MONITOR FACILITY OPERATIONS.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 035 OF 106
COSTLE D M ADMINISTRATOR
EPA
113399
REGULATION
A SECOND PURPOSE OF THE RECORDS REQUIRED IN SUBPART E IS TO ENSURE
PROMPT, PROPER, AND EFFECTIVE RESPONSE TO EMERGENCIES, BY PROVIDING
FACILITY OWNERS AND OPERATORS, AND LOCAL AUTHORITIES, WITH INFORMATION
WHICH ALLOWS THEM TO ACCURATELY ASSESS ANY HAZARD POSED TO HUMAN HEALTH
AND THE ENVIRONMENT AND TO RESPOND ACCORDINGLY.
THE AGENCY RECEIVED NUMEROUS COMMENTS FROM MANY SOURCES ON THE
PROPOSED RULES FOR MANIFESTS, RECORDKEEPING, AND REPORTING. SOME
COMMENTS RAISED GENERAL ISSUES APPLICABLE TO THE ENTIRE SUBPART; OTHERS
WERE SPECIFIC TO THE REQUIREMENTS FOR EITHER MANIFEST, RECORDKEEPING, OR
REPORTING. THIS PREAMBLE DISCUSSES THE GENERAL ISSUES FIRST, FOLLOWED
BY A SECTION-BY-SECTION ANALYSIS OF THE COMMENTS SPECIFIC TO THE THREE
TYPES (I.E., MANIFEST, RECORDKEEPING, OR REPORTING) OF SUBPART E
STANDARDS.
1. GENERAL ISSUES. A. BURDEN. MANY COMMENTERS FELT THAT THE
PROPOSED MANIFEST, RECORDKEEPING, AND REPORTING REQUIREMENTS WERE
EXCESSIVE, PARTICULARLY FOR SMALL FIRMS. THEY STATED THAT THE
REQUIREMENTS WERE UNNECESSARY AND IMPRACTICAL - PARTICULARLY IN
REQUIRING THE VARIOUS REPORTS AND SIGNATURES OF TREATMENT, STORAGE, AND
DISPOSAL OPERATORS - AND DID NOT CONTRIBUTE SUBSTANTIALLY TO HUMAN
HEALTH AND ENVIRONMENTAL PROTECTION. OTHER COMMENTERS WERE CONCERNED
THAT THE PAPERWORK ASSOCIATED WITH THE REQUIREMENTS WOULD BE
DUPLICATIVE, AND REQUIRE ADDITIONAL PERSONNEL IN GOVERNMENT AND INDUSTRY
TO PROCESS.
THE AGENCY DOES NOT AGREE THAT THE PROPOSED MANIFEST, RECORDKEEPING,
AND REPORTING REQUIREMENTS IMPOSED AN UNNECESSARY BURDEN ON THE WASTE
MANAGEMENT COMMUNITY. NUMEROUS PAST DOCUMENTED DAMAGE CASES HAVE
RESULTED FROM IMPROPER WASTE DISPOSAL IN PART BECAUSE WASTES WERE NOT
TRACKED, AND LITTLE LIABILITY OR RESPONSIBLITY WAS ASSIGNED OR ACCEPTED
BY THE WASTE GENERATORS, TRANSPORTERS, OR DISPOSERS. THESE REQUIREMENTS
ARE DESIGNED TO MINIMIZE THE LIKLIHOOD OF INCIDENTS LIKE THESE OCCURRING
AGAIN. TO THIS END, THE AGENCY BELIEVES THAT THE VARIOUS RECORDS,
REPORTS, AND SIGNATURES OF TREATERS, STORERS, AND DISPOSERS ARE
NECESSARY TO ALLOW EPA ENFORCEMENT OFFICIALS TO ASSIGN RESPONSIBILITY,
AND ULTIMATELY LIABILITY, IN CASES WHERE PROBLEMS ARISE.
THE AGENCY DOES NOT AGREE THAT THE RESULTING PAPERWORK WILL BE
DUPLICATIVE. THE AGENCY HAS MADE EVERY EFFORT TO ELIMINATE ANY
DUPLICATION, AND HAS DOCUMENTED THESE ATTEMPTS IN THE REPORTS IMPACT
ANALYSIS, WHICH WAS DEVELOPED IN RESPONSE TO THE PRESIDENT'S CAMPAIGN TO
REDUCE PAPERWORK. THE TOTAL RCRA INTERIM STATUS ADMINISTRATIVE COST,
INCLUDING THE COST OF COMPLYING WITH NOTIFICATION MANIFEST,
RECORDKEEPING, AND REPORTING REQUIREMENTS AS WELL AS OTHER REQUIREMENTS
SUCH AS INSPECTIONS AND PREPARING CLOSURE PLANS, IS ESTIMATED AT ABOUT
36 MILLION DOLLARS INITIALLY AND 40 MILLION DOLLARS ANNUALLY THEREAFTER.
CONSIDERING THAT AN ESTIMATED 72,000 INSTALLATIONS WILL BE REGULATED
UNDER THIS PROGRAM, THE AGENCY DOES NOT BELIEVE THAT, FOR THE WASTE
MANAGEMENT COMMUNITY IN GENERAL, THE COST OF THIS ASPECT OF THE PROGRAM
WILL BE EXCESSIVE.
B. CLASS OF HAZARD. A FEW COMMENTERS SUPPORTED THE REPORTING OF
DETAILED INFORMATION ON "TRULY" HAZARDOUS WASTES, BUT ADDED THAT, FOR
OTHER WASTES, THIS INFORMATION IS NOT NEEDED AND WOULD NOT BE OF VALUE.
THE AGENCY AGREES WITH THE CONCEPT THAT INFORMATION NEEDS COULD VARY
WITH THE CLASS OR DEGREE OF HAZARD OF A WASTE. AS NOTED EARLIER IN THIS
PREAMBLE, EPA IS DEVELOPING A CLASS OF HAZARD SYSTEM FOR THE TECHNICAL
WASTE MANAGEMENT REQUIREMENTS UNDER THE SECTION 3004 REGULATIONS. THE
AGENCY BELIEVES, HOWEVER, THE FINAL MANIFEST, RECORDKEEPING, AND
REPORTING REQUIREMENTS ARE THE MINIMUM NECESSARY FOR ANY HAZARDOUS
WASTE, REGARDLESS OF CLASS OF HAZARD. THE AGENCY ANTICIPATES THE
POSSIBILITY OF ADDING DIFFERENT RECORDKEEPING AND REPORTING REQUIREMENTS
IN THE FUTURE FOR THE CLASSES OF HIGHEST HAZARD IDENTIFIED IN THE NEW
SYSTEM.
2. MANIFEST SYSTEM. THE FINAL RULES REQUIRE OWNERS OR OPERATORS OF
FACILITIES WHICH RECEIVE WASTE FROM OFF-SITE TO SIGN, DATE, AND RETURN A
COPY OF THE MANIFEST TO THE TRANSPORTER IMMEDIATELY, AND TO THE
GENERATOR WITHIN 30 DAYS OF RECEIVING THE WASTE. OWNERS OR OPERATORS
MUST ALSO NOTE SIGNIFICANT DISCREPANCIES IN THE TYPE OR QUANTITY OF
WASTE RECEIVED, AND NOTIFY EPA IF DISCREPANCIES CANNOT BE RESOLVED.
THIS SECTION OF THE PREAMBLE DISCUSSES THE MAJOR COMMENTS RECEIVED ON
THE PROPOSED SECTION 250.43-5(A) MANIFEST REQUIREMENTS.
A. MANIFEST COPIES. THE AGENCY PROPOSED A 30-DAY PERIOD FOR THA
FACILITY OWNER OR OPERATOR TO RETURN THE MANIFEST TO THE GENERATOR IN
ORDER TO ALLOW THE FACILITY OWNER OR OPERATOR TO RETURN THE MANIFESTS AT
THE SAME TIME AS HE SENDS MONTHLY BILLS TO GENERATORS, THUS REDUCING
PAPERWORK AND POSTAGE COSTS. A NUMBER OF COMMENTERS SUPPORTED THE
PROPOSED 30-DAY TIME PERIOD ALLOWED FOR TRANSMITTING THE MANIFEST AS
REASONABLE, AND ARGUED THAT IT SHOULD BE RETAINED TO (1) ALLOW AN
ORDERLY RETURN OF MANIFESTS, (2) GREATLY REDUCE PAPERWORK AND THE
CHANCES OF LOSING ONE OF THE MANIFESTS, AND (3) ALLOW THE GENERATOR TO
PREPARE HIS REPORTS BASED ON RECEIPT OF SUBMITTALS AT EXPECTED TIMES
RATHER THAN ON A CONTINUOUS STREAM OF MANIFESTS RECEIVED AT VARYING
INTERVALS.
A NUMBER OF OTHER COMMENTERS REQUESTED THAT THE TIME PERIOD BE
SHORTENED TO ONE DAY, OR ONE OR TWO WEEKS, TO (1) ALLOW MORE EFFECTIVE
AND TIMELY FOLLOW-UP ON WASTE SHIPMENTS, (2) GIVE GENERATORS MORE TIME
TO COMPLETE EXCEPTION REPORTS, AND (3) AVOID LOSING DOCUMENTS. HOWEVER,
SOME COMMENTERS ARGUED AGAINST REQUIRING OWNERS OR OPERATORS TO
IMMEDIATELY RETURN MANIFESTS, CLAIMING THAT THIS WAS UNREASONABLE
BECAUSE TIME WOULD BE NEEDED TO CHECK OUT ANY DISCREPANCIES, AND RECORD
DATA FROM THE MANIFEST. THESE COMMENTERS FELT A SHORTER RETURN PERIOD
WOULD NOT PROVIDE ANY ENFORCEMENT BENEFIT, NOR PREVENT ILLEGAL DUMPING.
STILL OTHER COMMENTERS RECOMMENDED THAT THE PERIOD BE EXTENDED TO
ALLOW MORE TIME FOR RECORDING DATA FROM EACH MANIFEST FOR REPORTING.
AFTER CAREFUL REVIEW OF THESE COMMENTS, THEAENCY HAS DECIDED TO
RETAIN THE PROPOSED 30-DAY TIME PERIOD ALLOWED FOR RETURNING MANIFESTS
TO THE GENERATOR. THE AGENCY BELIEVES THAT A 30-DAY TIME PERIOD IS
REASONABLE, AND DOES NOT PRECLUDE RETURNING MANIFESTS WITHIN A SHORTER
TIME PERIOD SHOULD A GENERATOR INSIST UPON IT.
THE FINAL PART 262 RULES REQUIRE THAT, IF THE GENERATOR DOES NOT
RECEIVE A PROPERLY SIGNED MANIFEST WITHIN 45 DAYS OF THE WASTE'S
SHIPMENT TO A HAZARDOUS WASTE FACILITY, HE MUST MAKE AN EXCEPTION REPORT
TO EPA. ONE COMMENTER SUGGESTED THAT OWNERS OR OPERATORS SHOULD RETURN
MANIFESTS TO THE PERMITTING AGENCY, RATHER THAN TO THE GENERATOR, TO
ELIMINATE THE NEED FOR THE GENERATOR TO MAKE EXCEPTION REPORTS. ANOTHER
COMMENTER ARGUED THAT THE REGULATION SHOULD BE FLEXIBLE ENOUGH TO ALLOW
MANIFESTS TO BE RETURNED TO EITHER AN AUTHORIZED STATE AGENCY OR THE
GENERATOR, IN ORDER TO ALLOW STATES TO BECOME AWARE OF EXCEPTIONS
EARLIER. A RELATED COMMENT ARGUED THAT STATES WITH PROGRAMS THAT ARE
ADEQUATE TO IDENTIFY MISSING SHIPMENTS SHOULD HAVE THE AUTHORITY NOT TO
REQUIRE THE MANIFEST BE RETURNED TO THE GENERATOR. ANOTHER COMMENTER
RECOMMENDED THAT EFFORTS BE MADE TO REDUCE THE NUMBER OF COPIES OF
MANIFESTS THAT MUST BE DISTRIBUTED AND RETAINED IN ORDER TO MINIMIZE
COSTS AND SPACE REQUIREMENTS.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 036 OF 106
COSTLE D M ADMINISTRATOR
EPA
113400
REGULATION
THE AGENCY STRONGLY BELIEVES THAT THE WASTE GENERATOR, RATHER THAN
EPA, SHOULD BE RESPONSIBLE FOR ENSURING THAT HIS HAZARDOUS WASTE
ACTUALLY ARRIVES AT THE INTENDED FACILITY. THE MANIFEST ROUTING SYSTEM
IS DESIGNED TO PROVIDE THE GENERATOR WITH THE FEEDBACK INFORMATION
NECESSARY TO MAKE THAT DETERMINATION. WHILE THIS SYSTEM MAY REQUIRE
MORE COPIES OF MANIFESTS TO BE DISTRUBTED AND MAINTAINED THAN WOULD BE
THE CASE IN OTHER SYSTEMS, IT WILL RESULT IN MORE TIMELY AND EFFECTIVE
DISCOVERY OF ERRANT SHIPMENTS AND ALLOW PROMPT ENFORCEMENT ACTIONS. THE
RATIONALE FOR THE EPA MANIFEST SYSTEM IS DISCUSSED IN MORE DETAIL IN THE
SECTION 3002 BACKGROUND DOCUMENT.
B. MANIFEST DISCREPANCIES. PROPOSED SECTION 250.43-5(A)(4) REQUIRED
THAT OWNERS OR OPERATORS NOTIFY THE REGIONAL ADMINISTRATOR IMMEDIATELY
WHEN THERE IS A DISCREPANCY BETWEEN THE TYPE OR QUANTITY OF WASTE
DESIGNATED ON THE MANIFEST, AND THE TYPE OR QUANTITY OF WASTE ACTUALLY
RECEIVED AT THE FACILITY. SEVERAL COMMENTERS FELT THAT THE PROPOSED
RULE WOULD RESULT IN THE AGENCY GEING INUNDATED WITH UNNECESSARY
PAPERWORK, RESULTING FROM FACILITIES REPORTING INADVERTENT OR
UNIMPORTANT ERRORS. THEY SUGGESTED THAT THE AGENCY SPECIFY ALLOWABLE
DEVIATIONS WHICH WOULD NOT REQUIRE SUBMITTING A DISCREPANCY REPORT TO
THE REGIONAL ADMINISTRATOR.
THE AGENCY AGREES THAT IT IS REASONABLE TO SET LIMITS WHICH WOULD NOT
ROUTINELY TRIGGER DISCREPANCY FINDINGS, BUT WHICH ALSO DO NOT ALLOW
EXCESSIVE AMOUNTS OF HAZARDOUS WASTE TO BE UNACCOUNTED FOR.
MANY FACTORS ENTERED INTO THE DECISION REGARDING THE LIMITS TO SET ON
THE VARIATION IN AMOUNTS OF WASTE WHICH WOULD TRIGGER A DISCREPANCY
NOTATION AND REPORT. BECAUSE OF THE LIMITS ON THE SENSITIVITY AND
CALIBRATION OF WEIGHING SCALES, AS WELL AS POSSIBLE VARIATIONS IN VOLUME
AND DENSITY MEASUREMENTS, IT WOULD SEEM REASONABLE TO ALLOW RELATIVELY
LARGE ERRORS FOR BULK SHIPMENTS, SUCH AS 5 TO 10 PERCENT. FURTHER, THE
AGENCY DOES NOT WISH TO BE SWAMPED WITH DISCREPANCY REPORTS AS A
CONSEQUENCE OF SETTING THE DISCREPANCY LIMITS TOO TIGHTLY.
CONSEQUENTLY, FOR THE FINAL RULE, THE AGENCY HAS SELECTED AN
ALLOWABLE DISCREPANCY LIMIT OF 10 PERCENT IN WEIGHT OF THE MANIFESTED
WASTE AMOUNT FOR BULK SHIPMENTS. THIS LIMIT, HOWEVER, DOES NOT APPLY TO
BATCH SHIPMENTS. A DISCREPANCY OF ONE DRUM IN A SHIPMENT IS SUFFICIENT
CAUSE FOR THE FACILITY OWNER OR OPERATOR TO START FOLLOW-UP PROCEDURES
IN THE FINAL RULES. THE AGENCY DECIDED TO APPLY A DIFFERENT LIMIT TO
BATCH SHIPMENTS - EVEN THOUGH THE AGENCY RECOGNIZES THAT THE AMOUNTS OF
WASTE INVOLVED CAN VARY CONSIDERABLY - BECAUSE SUCH DISCREPANCIES CAN BE
DETECTED BY A SIMPLE COUNT.
ANOTHER KIND OF POSSIBLE DISCREPANCY BETWEEN THE WASTE MANIFEST AND
THE ACTUAL SHIPMENT IS A DIFFERENCE IN THE CHEMICAL OR PHYSICAL NATURE
OF THE WASTE. THE AGENCY'S INTENTION IN THIS RESPECT IS TO HAVE
FACILITIES FLAG OBVIOUS DIFFERENCES IN WASTE TYPE (SUCH AS WASTE
SOLVENTS RECEIVED INSTEAD OF THE WASTE ACIDS LISTED ON THE MANIFEST), AS
OPPOSED TO MORE SUBTLE CHANGES, SUCH AS PART-PER-MILLION VARIATIONS IN
THE CONCENTRATIONS OF HEAVY METALS WITHIN A SLUDGE. THE AGENCY WISHES
TO ENSURE THAT A FACILITY IS PROPERLY EQUIPPED TO HANDLE THE WASTES IT
RECEIVES, AND IS NOT SUBJECT TO SURPRISES IN WASTE TYPE INTRODUCED BY
MISTAKE OR ON PURPOSE BY WASTE GENERATORS OR TRANSPORTERS. THE SUBPART
B REQUIREMENTS FOR WASTE SAMPLING AND ANALYSIS SHOULD, IN MOST CASES,
ENSURE THAT FACILITIES DISCOVER OBVIOUS DIFFERENCES IN WASTE TYPE.
THE AGENCY BELIEVES THAT A DISTINCTION SHOULD BE MADE BETWEEN
DISCOVERING A DISCREPANCY AND REPROTING THE DISCREPANCY. THE AGENCY
BELIEVES THAT THE FACILITY OWNER'S OR OPERATOR'S LOGICAL AND REASONABLE
RESPONSE, UPON DISCOVERING A DISCREPANCY IN WASTE AMOUNT OR TYPE IF FOR
HIM TO CONTACT THE WASTE GENERATOR, AND THE TRANSPORTER IF NECESSARY,
AND TRY TO RESOLVE THE DISCREPANCY. THEREFORE, THE FINAL RULES NOW
SPECIFY THAT DISCREPANCIES SHOULD BE REPORTED TO EPA ONLY IF THEY CANNOT
BE RESOLVED SATISFACTORILY. BY SO DOING, THE NUMBER OF DISCREPANCY
REPORTS CAN BE REDUCED, AND THE REPORTS SUBMITTED TO THE AGENCY WILL
FOCUS ON TRULY SIGNIFICANT DISCREPANCIES.
SEVERAL COMMENTERS FELT THAT THE PROPOSED REQUIREMENT FOR IMMEDIATE
DISCREPANCY REPORTING WAS TOO STRINGENT. THEY ASKED THAT A TIME LIMIT
BE SET TO REPORT DISCREPANCIES, BECAUSE MORE TIME MIGHT BE NEEDED TO
DETERMINE THAT A DISCREPANCY IN FACT EXISTS. SOME COMMENTERS SUGGESTED
THAT A TIME LIMIT OF 10 WORKING DAYS WOULD MAKE THE SYSTEM MORE
EFFICIENT. OTHER COMMENTERS SUGGESTED THAT A MORE PRACTICAL REQUIREMENT
WOULD BE 30 DAYS FROM RECEIPT OF THE SHIPMENT.
THE AGENCY AGREES WITH THE COMMENTERS THAT THE REGULATIONS SHOULD
SPECIFY A TIME FRAME FOR REPORTING DISCREPANCIES TO THE REGIONAL
ADMINISTRATOR. ALL DISCREPANCIES SHOULD BE DISCOVERED SOON AFTER THE
WASTE ARRIVES AT THE DISPOSAL FACILITY. DISCREPANCIES IN AMOUNT SHOULD
BE FOUND AT THE WEIGHING STATION OR WASTE RECEIVING AREA BEFORE THE
FACILITY OWNER OR OPERATOR SIGNS THE INCOMING MANIFEST. DISCREPANCIES
IN TYPE CAN BE DISCOVERED BY INSTPECTING THE WASTE, IN SOME CASES, OR BY
SAMPLING AND ANALYZING THE WASTE, WHICH USUALLY TAKES A FEW HOURS.
THE AGENCY EXPECTS THAT THE FACILITY OWNER OR OPERATOR WILL ATTEMPT
TO RECONCILE MOST POTENTIALLY REPORTABLE DISCREPANCIES THROUGH TELEPHONE
CONVERSATIONS WITH THE WASTE GENERATOR OR TRANSPORTER. IT SHOULD BE
POSSIBLE TO CHECK RECORDS, ETC., AND PROVIDE FEEDBACK IN A MATTER OF
DAYS, EVEN INCLUDING MAILING TIME. CONSEQUENTLY, THE AGENCY BELIEVES
THAT IT IS POSSIBLE TO DISCOVER AND RECONCILE DISCREPANCIES WITHIN 15
DAYS OF RECEIVING THE WASTE AT THE DISPOSAL FACILITY. THE FINAL RULES,
THEREFORE, SPEICIFY THAT WITHIN 15 DAYS AFTER RECEIVING THE WASTE,
UNRESOLVED SIGNIFICANT DISCREPANCIES AND ATTEMPTS TO RECONCILE THEM MUST
BE REPORTED IN A LETTER TO THE REGIONAL ADMINISTRATOR, WITH A COPY OF
THE MANIFEST AT ISSUE.
A COMMENTER SUGGESTED THAT IF THERE ARE DISCREPANCIES IN THE
MANIFEST, THE HAZARDOUS WASTE SHOULD NOT BE ACCEPTED UNTIL THE GENERATOR
OR TRANSPORTER RECONCILES THE DISCREPANCIES.
THE AGENCY AGREES IN PRINCIPLE THAT SIGNIFICANT DISCREPANCIES IN THE
MANIFEST SHOULD BE RECONCILED BETWEEN THE GENERATOR OR TRANSPORTER AND
THE DISPOSER. HOWEVER, THE AGENCY DISAGREES WITH THE SUGGESTION THAT
THE AGENCY REQUIRE THAT THE WASTE NOT BE ACCEPTED BY THE DISPOSER. IN
THE AGENCY'S VIEW, IT IS MORE PROTECTIVE OF HUMAN HEALTH AND THE
ENVIRONMENT FOR WASTES TO BE ACCEPTED BY A RESPONSIBLE DISPOSER, AND
PROPERLY MANAGED, WHILE RECONCILLIATION IS ATTEMPTED, RATHER THAN FOR
THE WASTE TO BE REJECTED WITH THE POSSIBILITY THAT IT MAY THEN BE
IMPROPERLY DISPOSED ELSEWHERE. CONSEQUENTLY, THE SUGGESTION HAS NOT
BEEN ADOPTED IN THE FINAL RULE. HOWEVER, THE DISPOSER IS NOT OBLIGATED
BY THESE REGULATIONS TO ACCEPT THE SHIPMENT IF THERE IS A SIGNIFICANT
DISCREPANCY IN QUANTITY OR TYPE.
C. MANIFEST RETENTION. PROPOSED SECTION 250.43-5(B)(6) REQUIRED THE
OWNER OR OPERATOR OF A FACILITY ACCEPTING DELIVERIES OF HAZARDOUS WASTE
FROM OFF-SITE SOURCES FOR TREATMENT, STORAGE, OR DISPOSAL, TO RETAIN FOR
THREE YEARS A COPY OF EACH MANIFEST OR DELIVERY DOCUMENT, AS CERTIFIED
BY THE GENERATOR, TRANSPORTER, AND OWNER OR OPERATOR OF THE FACILITY.
THIS RULE HAS BEEN MOVED FROM THE RECORDKEEPING SECTION TO THE MANIFEST
SECTION OF THE FINAL RULES IN ORDER TO CONSOLIDATE ALL MANIFEST-RELATED
REQUIREMENTS IN ONE LOCATION WITHIN THE RULES.
ONE COMMENTER STATED THAT ALL FACILITIES ACCEPTING WASTE SHOULD
RETAIN ALL MANIFESTS FOR THE DURATION OF THE FACILITY'S OPERATION,
RATHER THAN FOR ONLY THREE YEARS.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 037 OF 106
COSTLE D M ADMINISTRATOR
EPA
113401
REGULATION
THE COMMENTER ARGUED THAT PROBLEMS AT LOVE CANAL SURFACED 25 YEARS
AFTER THE LAST RECORDED USE OF THE DUMP, AND THAT THREE YEARS IS TOO
SHORT A PERIOD FOR RECORDKEEPING, CONSIDERING THE LONGEVITY OF MANY
HAZARDOUS MATERIALS AND THEIR POTENTIAL THREAT TO HUMAN HEALTH AND THE
ENVIRONMENT.
THE AGENCY AGREES THAT RECORDS OF ALL HAZARDOUS WASTES HANDLED AT A
FACILITY SHOULD BE KEPT UNTIL FACILITY CLOSURE. HOWEVER, THE AGENCY
DOES NOT AGREE THAT ALL HAZARDOUS WASTE MANIFESTS NEED BE KEPT ON FILE
FOR THAT LONG A PERIOD.
THE AGENCY ANTICIPATES BOTH SHORT-RANGE AND LONG-RANGE USES FOR
HAZARDOUS WASTE RECORES. RETAINING MANIFESTS FOR A THREE-YEAR PERIOD IS
SUFFICIENT FOR THE MAJORITY OF ENFORCEMENT CASES INVOLVING GENERATION
AND TRANSPORTATION OF HAZARDOUS WASTE, WHICH WILL LIKELY BE DISCOVERED
AND ACTED UPON WITHIN THAT PERIOD. THUS, THE AGENCY HAS SPECIFIED A
THREE-YEAR RETENTION PERIOD FOR MANIFESTS IN THE RULES FOR GENERATORS
(SECTION 3002) AND TRANSPORTERS (SECTION 3003), AS WELL AS IN THESE
RULES FOR FACILITY OWNERS OR OPERATORS. FOR LONGER-RANGE USES, SUCH AS
RESPONDING TO LOVE CANAL-TYPE SITUATIONS, THE FACILITY RECORDKEEPING
RULES REQUIRE OWNER OR OPERATORS TO RETAIN RECORDS (BUT NOT NECESSARILY
MANIFESTS) OF ALL HAZARDOUS WASTE HANDLED AT THE FACILITY UNTIL FACILITY
CLOSURE. HOWEVER, THAT REQUIREMENT ALLOWS THE OWNER OR OPERATOR THE
FLEXIBILITY TO DESIGN A RECORDKEEPING SYSTEM SUITABLE TO THE SPECIFIC
NEEDS OF HIS OPERATION. LARGER FACILITIES MAY USE AUTOMATIC DATA
PROCESSING SYSTEMS. SMALLER FACILITIES MAY CHOOSE TO RETAIN MANIFESTS
AS THE BASIS FOR RECORDKEEPING.
IN ADDITION, THE AGENCY WILL RECEIVE AND RETAIN REPORTS WHICH
SUMMARIZE THE WASTE TRANSPORTED TO EACH FACILITY. THESE REPORTS WILL
CONTAIN A DESCRIPTION OF THE WASTE, THE QUANTITY OF THE WASTE, AND THE
NUMERICAL IDENTIFIER OF THE GENERATOR OR TRANSPORTER. IN THIS WAY, THE
AGENCY WILL BE ABLE TO REVIEW AND SUMMARIZE THE DATA ON THE ANNUAL
REPORTS FOR A PARTICULAR FACILITY, SHOULD ANY EMERGENCY OR SLOW RELEASE
PROBLEM ARISE AT THE FACILITY AFTER THE MANIFESTS HAVE BEEN DESTROYED.
3. RECORDKEEPING. THE FINAL RULES REQUIRE FACILITY OWNERS OR
OPERATORS TO KEEP RECORDS OF THE TYPE AND QUANTITY OF EACH HAZARDOUS
WASTE RECEIVED AND HOW THIS WASTE IS TREATED, STORED, OR DISPOSED.
ALSO, RECORDS ARE TO BE KEPT ON THE LOCATION OF WASTE, WASTE ANALYSES,
INSPECTIONS, PERSONNEL TRAINING, MONITORING RESULTS, INCIDENTS THAT
REQUIRE IMPLEMENTING THE FACILITY CONTINGENCY PLAN, AND COST ESTIMATES
FOR CLOSURE AND POST-CLOSURE CARE. THIS SECTION OF THE PREAMBLE
DISCUSSES THE MAJOR COMMENTS RECEIVED ON THE PROPOSED SECTION
250.43-5(B) RECORDKEEPING REQUIREMENTS.
A. CONGRESSIONAL INTENT. A COMMENTER CLAIMED THAT THE PROPOSED
RECORDKEEPING REQUIREMENTS WERE CONTRARY TO CONGRESSIONAL INTENT BECAUSE
MANIFESTS ARE NOT REQUIRED FOR ON-SITE DISPOSAL OF HAZARDOUS WASTE, YET
THE INFORMATION REQUIRED TO BE KEPT BY THE PROPOSED REGULATION WAS
SUBSTANTAILLY IDENTICAL TO THE INFORMATION ON A MANIFEST.
THE AGENCY DISAGREES THAT RECORDKEEPING AT ON-SITE FACILITIES IS
CONTRARY TO CONGRESSIONAL INTENT. SECTION 3004(1) OF RCRA WHICH
MANDAGES RECORDKEEPING AT HAZARDOUS WASTE FACILITIES, MAKES NO
DISTINCTION BETWEEN ON-SITE AND OFF-SITE FACILITIES. THE MANIFEST IS
PRIMARILY A WASTE TRANSPORT TRACKING AND CONTROL DOCUMENT.
RECORDKEEPING REQUIREMENTS FOR FACILITIES ARE INDEPENDENT OF THE
MANIFEST AND SERVE DIFFERENT PURPOSES. THE CORE INFORMATION WHICH
APPEARS ON THE MANIFEST, E.G., ORIGIN, QUANTITY AND TYPE OF WASTE, IS
ALSO NECESSARY FOR RECORDKEEPING PURPOSES.
B. OPERATING RECORD. A COMMENTER SUGGESTED THAT THE PROPOSED TERM
"OPERATING LOG" BE CHANGED TO THE TERM "OPERATING RECORD" TO ALLOW THE
USE OF AUTOMATIC DATA PROCESSING SYSTEMS.
THE AGENCY AGREES THAT THE USE OF AN ADP SYSTEM IS CONSISTENT WITH
THE RECORDKEEPING SYSTEM FLEXIBILITY INTENDED BY THE PROPOSED
REGULATIONS. FURTHER, THE LARGE AREA OF SOME FACILITIES, AND THE
VARIETY OF FUNCTIONS PERFORMED AT SOME FACILITIES, MAKE IT VERY UNLIKELY
THAT ALL REQUIRED INFORMATION WOULD BE RECORDED IN ONE OPERATING LOG AT
ONLY ONE LOCATION. IN WRITING THE PROPOSED RULES THE AGENCY ASSUMED A
NUMBER OF LOGS, OR RECORDS, WOULD BE MAINTAINED AT A SITE. ALL SUCH
RECORDS AT A FACILITY TAKEN TOGETHER WOULD THEN CONSTITUTE THE
FACILITY'S OPERATING LOG.
THE TERM "OPERATING RECORD" MORE ACCURATELY REFLECTS THE
AGENCY'S INTENTIONS AND EXPECTED COMMERCIAL PRACTICE, THAN DOES
THE TERM "OPERATING LOG." THE AGENCY HAS THEREFORE CHANGED ALL
REFERENCES IN THE FINAL REGULATIONS FROM "LOG" TO "RECORD."
C. WARRANTLESS INSPECTIONS. A COMMENTER, RELYING ON MARSHALL V.
BARLOW'S, INC., 413 U.S. 266 (1978), SUGGESTED THAT THE PROPOSED
REQUIREMENT THAT THE OPERATING RECORD BE OPEN TO ANY DULY DESIGNATED
EMPLOYEE OR AGENT OF THE AGENCY AUTHORIZED WARRANTLESS ADMINISTRATIVE
INSPECTIONS WITHOUT THE CONSENT OF FACILITY'S OWNER OR OPERATOR.
EPA'S INFORMATION-GATHERING ACTIVITIES UNDER RCRA SECTION 3007 ARE
SUBJECT TO THE FOURTH AMENDMENTS PROTECTION AGAINST UNREASONABLE
SEARCHES AS ENUNICIATED BY THE SUPREME COURT IN MARSHALL V. BARLOW'S,
INC., SUPRA. IT SHOULD BE NOTED THAT THE SUPREME COURT IN BARLOW'S
QUOTING ALMEIDA-SANCHEZ V. UNITED STATES (413 U.S. 266, 271), EMPHASIZED
THAT:
A CENTRAL DIFFERENCE BETWEEN THOSE CASES (INVOLVING WARRANTLESS
SEARCHES OF PERVASIVELY REGULATED INDUSTRIES) AND THIS ONE IS THAT
BUSINESSMEN ENGAGED IN SUCH FEDERALLY LICENSED AND REGULATED ENTERPRISES
ACCEPT THE BURDENS AS WELL AS THE BENEFITS OF THEIR TRADE WHEREAS THE
PETITIONER HERE WAS NOT ENGAGED IN ANY REGULATED OR LICENSED BUSINESS.
THE BUSINESSMEN IN A REGULATED INDUSTRY IN EFFECT CONSENTS TO THE
RESTRICTIONS PLACED ON HIM.
EPA'S EXERCISE OF ITS SECTION 3007 AUTHORITY WILL BE CONDUCTED IN A
MANNER CONSISTENT WITH THE DECISION.
D. NOMENCLATURE FOR WASTE INFORMATION. ONE COMMENTER COMPLAINED
THAT PROPOSED SECTION 250.43-5(B)(2)(I)(A), WHICH REQUIRED USING DOT OR
EPA WASTE DESCRIPTIONS IN THE OPERATING RECORD, WAS CONFUSING.
THE AGENCY ALLOWED THE USE OF DOT, AS WELL AS EPA NOMENCLATURE,
TO DESCRIBE WASTE ON THE PROPOSED OPERATING RECORD, BECAUSE THE
MANIFEST, WHICH CONTAINS MUCH OF THE INFORMATION NEEDED TO FILL
IN THE RECORD, DESCRIBES WASTE USING DOT NOMENCLATURE. THE AGENCY
THOUGHT THAT PROVIDING THE FLEXIBILITY OF USING EITHER THE AGENCY'S
OR DOT'S TERMINOLOGY IN THE OPERATING RECORD, WOULD BE THE MOST
COST-EFFECTIVE AND LEAST BURDENSOME METHOD FOR RECORDING WASTE
MANAGEMENT INFORMATION.
IN RETROSPECT, THE AGENCY NOW BELIEVES THIS WAS NOT THE BEST
APPROACH. THE PROPOSED SECTION 3004 RULES FOR RECORDKEEPING APPLIED TO
BOTH ON-SITE AND OFF-SITE FACILITIES, ALTHOUGH SEPARATE RULES FOR
ON-SITE FACILITY REPORTING WERE CONTAINED IN THE PROPOSED SECTION 3002
RULES. ON-SITE FACILITIES DO NOT USE MANIFESTS, AND THUS RECORDKEEPING
BASED ON DOT NOMENCLATURE IS NOT APPROPRIATE FOR THESE FACILITIES.
THEREFORE, TO SIMPLIFY THE RULES, AND TO AVOID CONFUSION BETWEEN ON-SITE
AND OFF-SITE FACILITY RECORDKEEPING REQUIREMENTS, THE AGENCY HAS DECIDED
TO USE EPA NOMENCLATURE FOR ALL FACILITY RECORDKEEPING AND REPORTING.
4. REPORTING. THE FINAL RULES REQUIRE FACILITY OWNERS OR OPERATORS
TO FILE AN ANNUAL REPORT SUMMARIZING THE TYPE AND QUANTITY OF EACH
HAZARDOUS WASTE RECEIVED, AND HOW THIS WASTE IS TREATED, STORED, OR
DISPOSED OF AT THE FACILITY. IN ADDITION, OWNERS OR OPERATORS ARE
REQUIRED TO MAKE REPORTS TO THE EPA REGIONAL ADMINISTRATOR WITHIN 15
DAYS AFTER WASTES ARE RECEIVED WITHOUT A MANIFEST; INCIDENTS SUCH AS
FIRES, EXPLOSIONS, AND RELEASES; AND PROBLEMS DETECTED VIA GROUND-WATER
MONITORING.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 038 OF 106
COSTLE D M ADMINISTRATOR
EPA
113402
REGULATION
REPORTING REQUIREMENTS FOR FACILITY OWNERS OR OPERATORS THAT GENERATE
AND DISPOSE OF THEIR WASTE AT THE SAME LOCATION (I.E., ON-SITE
DISPOSERS) WERE SPECIFIED IN THE PORPOSED SECTION 3002 RULES. BECAUSE
THESE RULES WERE NEARLY IDENTICAL TO THOSE SPECIFIED IN THE PROPOSED
SECTION 3004 REPORTING REQUIREMENTS, THE AGENCY HAS CONSOLIDATED THE
REPORTING REQUIREMENTS FOR BOTH ON-SITE AND OFF-SITE FACILITIES IN THESE
FINAL SECTION 3004 RULES.
THIS SECTION OF THE PREAMBLE DISCUSSES THE MAJOR COMMENTS RECEIVED ON
THE PROPOSED SECTION 250.43-5(C) REPORTING REQUIREMENTS.
A. JOINT FILING REPORTS. COMMENTERS SUGGESTED THAT FIRMS WITH MORE
THAN ONE SITE SHOULD BE ALLOWED TO SUBMIT REPORTS FOR ALL SITES.
ANOTHER COMMENTER FELT THE REGULATIONS SHOULD ALLOW FOR AN ASSUMPTION OF
DUTIES CONTRACT BETWEEN THE GENERATOR AND THE FACILITY OWNER OR OPERATOR
WHEREBY LEGAL RESPONSIBILITY FOR COMPLYING WITH THE GENERATOR REPORTING
REQUIREMENTS CAN BE ALLOCATED TO THE OWNER OR OPERATOR.
IF A CORPORATE HEADQUARTERS MAINTAINS THE RECORDS FOR THE VARIOUS
FACILITIES IT CONTROLS, BOTH THE PROPOSED AND FINAL RULES ALLOW THE
FIRM'S HEADQUARTERS TO SUBMIT REPORTS FOR EACH OF ITS FACILITIES.
THE AGENCY CANNOT PROHIBIT OWNERS OR OPERATORS FROM ASSUMING
RESPONSIBILITY FOR THE GENERATOR'S REPORTING IF THEY CHOOSE TO DO SO.
CONTRACT LAW PROVIDES THE MECHANISM FOR OWNERS OR OPERATORS TO ASSUME
THESE RESPONSIBILITIES. IF, HOWEVER, THE GENERATOR'S CONTRACTED DUTIES
ARE NOT PERFORMED, THE GENERATOR WILL BE HELD RSPONSIBLE FOR NOT
COMPLYING WITH THE RCRA REPORTING REQUIREMENTS.
B. SUBMISSION OF THE ANNUAL REPORT. THE PROPOSED RULES REQUIRED
THAT THE FACILITY'S ANNUAL REPORT BE SENT TO THE REGIONAL ADMINISTRATOR
WITHIN FOUR WEEKS AFTER THE CLOSING DATE OF THE REPORTING YEAR. SOME
COMMENTERS FELT THAT THIS TURNAROUND TIME WAS TOO SHORT BECAUSE:
(A) MOST LARGE FIRMS WILL REQUIRE MORE THAN FOUR WEEKS TO PREPARE THE
ANNUAL REPORT;
(B) THE PAPERWORK BURDEN OF THE REPORT IS SO GREAT THAT THE FACILITY
WILL HAVE TO STOP OPERATIONS IN ORDER TO COMPLETE THE REPORT IF THE
REQUIRED TURNAROUND TIME IS ONLY 30 DAYS; AND
(C) FOUR WEEKS DOES NOT ALLOW SUFFICIENT TIME FOR RECENT MANIFESTS TO
BE RETURNED.
THE AGENCY AGREES THAT IT MAY TAKE MORE THAN 30 DAYS TO COMPILE THE
INFORMATION NEEDED TO COMPLETE THE FACILITY ANNUAL REPORT. THE OWNERS
OR OPERATORS OF BOTH ON-SITE AND OFF-SITE FACILITIES MAY BE GENERATORS
OF HAZARDOUS WASTE SENT ELSEWHERE, AS WELL AS DISPOSERS OF HAZARDOUS
WASTE. TO ALLOW WASTE GENERATORS SUFFICIENT TIME TO COLLECT ALL
MANIFESTS IN ORDER TO FILE THEIR ANNUAL REPORT, THE FINAL SECTION 3002
RULES ALLOW 60 DAYS, RATHER THAN 30 DAYS, FROM THE END OF THE CALENDAR
YEAR TO FILE THE ANNUAL REPORT. IN ORDER TO BE CONSISTENT WITH THE
REPORTING REQUIREMENTS FOR WASTE GENERATORS, AND TO AVOID UNNECESSARY
CONFUSION BY SPECIFYING SEPARATE DEADLINES FOR GENERATORS AND
FACILITIES, THE DEADLINE FOR SUBMITTING THE ANNUAL REPORT FOR ALL WASTE
MANAGEMENT FACILITIES HAS ALSO BEEN EXTENDED TO 60 DAYS.
C. CERTIFICATION STATEMENT. THE PROPOSED RULES REQUIRED THAT
FACILITY OWNERS OR OPERATORS SIGN ON THE ANNUAL REPORT FORM A STATEMENT
WHICH CERTIFIED THAT THE INFORMATION ON THE FORM WAS TRUE, ACCURATE, AND
COMPLETE. SEVERAL COMMENTERS OBJECTED TO THE PROPOSED WORDING OF THE
CERTIFICATION STATEMENT ON THE REPORT FORM. THEY SUGGESTED THAT THE
PHRASE "TO THE BEST OF MY KNOWLEDGE" BE INSERTED, AND THE WORD
"PERSONAL" BE DELETED FROM THE CERTIFICATION STATEMENT BECAUSE:
(A) THE PERSON SIGNING THE CERTIFICATION MAY NOT HAVE COMPILED THE
ACTUAL INFORMATION REPORTED, AND THUS, WILL NOT HAVE PERSONAL KNOWLEDGE
OF EACH OF THE MANY PIECES OF INFORMATION REPORTED, AND
(B) THE PROPOSED WORDING OF THE STATEMENT PLACES THE INDIVIDUAL WHO
SIGNS THE REPORT IN THE POSITION OF BEING CRIMINALLY LIABLE FOR ERRORS
BEYOND HIS CONTROL. IN MANY INSTANCES, AN ERROR COULD BE MADE EVEN
THOUGH THERE WAS A GOOD FAITH EFFORT TO SUBMIT ACCURATE INFORMATION.
THESE COMMENTERS ALSO FELT THAT THE SENTENCE "I AM AWARE THAT THERE
ARE SIGNIFICANT PENALTIES FOR SUBMITTING FALSE INFORMATION, INCLUDING
THE POSSIBILITY OF FINE AND IMPRISONMENT." SHOULD BE DELETED FROM THE
STATEMENT. THEY CLAIMED THAT THE SENTENCE WAS UNNECESSARY, BECAUSE IT
IS EVIDENT THAT ANYONE WHO KNOWINGLY SUBMITS A FALSE REPORT TO THE
FEDERAL GOVERNMENT IS SUBJECT TO SIGNIFICANT PENALTIES.
THE AGENCY AGREES THAT THE CERTIFICATION STATEMENT SHOULD REFLECT, TO
THE EXTENT POSSIBLE, THE SIGNER'S PERSONAL KNOWLEDGE OF THE TRUTH,
ACCURACY, AND COMPLETENESS OF THE SUBMISSION. THE OWNER OR OPERATOR OR
HIS AUTHORIZED REPRESENTATIVE MAY NOT HAVE FIRSTHAND KNOWLEDGE OF THE
TRUTH, ACCURACY, AND COMPLETENESS OF THE INFORMATION SUBMITTED.
ACCORDINGLY, THE AGENCY HAS CHANGED THE CERTIFICATION STATEMENT ON THE
ANNUAL REPORT TO REQUIRE THE OWNER OR OPERATOR OR HIS AUTHORIZED
REPRESENTATIVE TO STATE THAT "BASED ON MY INQUIRY OF THOSE INDIVIDUALS
IMMEDIATELY RESPONSIBLE FOR OBTAINING THE INFORMATION, I BELIEVE THAT
THE INFORMATION IS TRUE, ACCURATE, AND COMPLETE." THIS FORMULATION,
ADOPTED FROM EPA'S NPDES REGULATIONS, RECOGNIZES BOTH THE LIMITS OF THE
SIGNER'S PERSONAL KNOWLEDGE AND THE AGENCY'S NEED FOR ACCURATE AND
COMPLETE INFORMATION. IT ALLOWS THE OWNER OR OPERATOR TO RESPOND ON THE
BASIS OF HIS BELIEF, BUT SETS FROTH PRECISELY WHAT THE BASIS OF THAT
BELIEF MUST BE.
THE AGENCY DISAGREES WITH A COMMENTER'S SUGGESTION THAT EPA DELETE
FROM THE CERTIFICATION STATEMENT: "I AM AWARE THAT THERE ARE
SIGNIFICANT PENALTIES FOR SUBMITTING FALSE INFORMATION, INCLUDING THE
POSSIBILITY OF FINE AND IMPRISONMENT." THE AGENCY INCLUDED THIS SENTENCE
IN THE STATEMENT TO IMPRESS UPON THE SIGNER THE NECESSITY FOR SUBMITTING
COMPLETE AND ACCUARTE INFORMATION. THE AGENCY BELIEVES THAT SOME OWNERS
OR OPERATORS MAY NOT REALIZE THAT THE KNOWING SUBMISSION OF FALSE
INFORMATION TO EPA MAY SUBJECT THE SIGNER TO SIGNIFICANT PENALTIES.
THEREFORE, THE SENTENCE HAS BEEN RETAINED IN THE CERTIFICATION STATEMENT
IN THE FINAL RULES.
D. UNMANIFESTED WASTE REPORT. THE PROPOSED RULES REQUIRED OWNERS OR
OPERATORS TO FILE A QUARTERLY REPORT TO THE REGIONAL ADMINISTRATOR
DESCRIBING HAZARDOUS WASTE RECEIVED AT THE FACILITY NOT ACCOMPANIED BY A
MANIFEST, UNLESS THE WASTE WAS NOT REQUIRED TO BE ACCOMPANIED BY A
MANIFEST BECAUSE OF THE EXCLUSIONS PROVIDED IN THE SECTION 3002 RULES.
SOME COMMENTERS FELT THE UNMANIFESTED WASTE REPORTING REQUIREMENT
SHOULD BE DELETED BECAUSE IT WAS BURDENSOME, UNNECESSARY, AND SUBMITTED
SO INFREQUENTLY AS TO MAKE THE INFORMATION OF LITTLE OR NO VALUE TO THE
AGENCY.
THE AGENCY DISAGREES THAT THE INFORMATION CONTAINED IN THE REPORT IS
USELESS. BECAUSE OF THE UNCERTAINTY ASSOCIATED WITH UNMANIFESTED
HAZARDOUS WASTE, THE AGENCY WANTS TO KNOW AS MUCH AS IT CAN ABOUT THE
WASTE, AS SOON AS POSSIBLE. PROMPT SUBMISSION OF THE DETAILS REGARDING
UNMANIFESTED WASTE WILL ENABLE THE AGENCY TO ENSURE THAT THE FACILITY IS
MANAGING THE WASTE (WITH WHICH THE FACILITY MAY HAVE LIMITED MANAGEMENT
EXPERIENCE) IN AN APPROPRIATE MANNER. IT WILL ALSO ALLOW THE AGENCY TO
DETECT ANY SUSPICIOUS PATTERNS OF UNUSUALLY HIGH INCIDENCES OF
UNMANIFESTED WASTE IN PARTICULAR AREAS.
HOWEVER, THE AGENCY DOES AGREE THAT THE REPORTS WILL BE MORE USEFUL
FOR ENFORCEMENT PURPOSES IF THEY ARE SUBMITTED SOON AFTER THE
UNMANIFESTED WASTE IS RECEIVED. THEREFORE, IN THE FINAL RULES, THE
REPORT IS REQUIRED TO BE RETURNED TO THE AGENCY WITHIN 15 DAYS OF THE
DATE THE WASTE IS RECEIVED AT THE FACILITY.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 039 OF 106
COSTLE D M ADMINISTRATOR
EPA
113403
REGULATION
THE AGENCY DOES NOT BELIEVE THAT REQUIRING A 15-DAY TURN AROUND TIME
FOR THESE REPORTS WILL BE BURDENSOME. THIS IS BECUASE IT IS ILLEGAL TO
TRANSPORT HAZARDOUS WASTE WITHOUT A MANIFEST, AND THUS, THE INCIDENCE OF
UNMANIFESTED WASTE ARRIVING AT A FACILITY -- AND THE ATTENDANT NEED TO
FILL OUT A REPORT FOR THESE WASTES -- SHOULD BE INFREQUENT.
SMALL QUANTITIES OF HAZARDOUS WASTE ARE EXCLUDED FROM REGULATION
UNDER THIS PART AND DO NOT REQUIRE A MANIFEST WHERE A FACILITY RECEIVES
UNMANIFESTED HAZARDOUS WASTES, IT MAY BE DIFFICULT FOR THE FACILITY
OWNER OR OPERATOR TO DETERMINE WHETHER AN UNMANIFESTED WASTE REPORT
SHOULD BE FILED. IN SUCH CASES, THE AGENCY SUGGESTS THAT THE OWNER OR
OPERATOR OBTAIN FROM EACH GENERATOR A CERTIFICATION THAT THE WASTE
QUALIFIES FOR EXCLUSION. OTHERWISE, THE OWNER OR OPERATOR SHOULD FILE
AN UNMANIFESTED WASTE REPORT FOR THE HAZARDOUS WASTE MOVEMENT.
MONITORING
THE AGENCY RECEIVED MANY COMMENTS ON THE GROUND-WATER AND LEACHATE
MONITORING PORTIONS OF THE PROPOSED REGULATION. BASED ON THESE COMMENTS
THE AGENCY HAS MADE SUBSTANTIAL CHANGES IN THESE INTERIM STATUS
REGULATIONS. IN PARTICULAR THE REGULATIONS HAVE BEEN CHANGED TO REQUIRE
GROUND-WATER MONITORING AT SURFACE IMPOUNDMENTS, LANDFILLS, AND LAND
TREATMENT FACILITIES. THE PROPOSED INTERIM STATUS REGULATION REQUIRED
GROUND-WATER MONITORING ONLY AT THOSE SURFACE IMPOUNDMENTS AND LANDFILLS
WHERE A GROUND-WATER MONITORING SYSTEM WAS ALREADY IN PLACE. EPA HAS
DECIDED, THEREFORE, TO ISSUE THIS SUBPART AS "INTERIM FINAL" TO PROVIDE
AN OPPORTUNITY FOR FURTHER PUBLIC COMMENT ON THIS PORTION OF THE
REGULATION.
THE PROPOSED REGULATION REQUIRED LEACHATE MONITORING IN ADDITION TO
GROUND-WATER MONITORING AT LANDFILLS AND SURFACE IMPOUNDMENTS. SUCH A
SYSTEM WAS TO COLLECT LEACHATE SAMPLES IN THE ZONE OF AERATION BETWEEN
THE WATER TABLE AND THE PRIMARY LINER OR NATURAL SOIL BARRIER OF THE
DISPOSAL FACILITY. VARIANCES WERE ALLOWED FOR OWNERS OR OPERATORS WHO
COULD DEMONSTRATE THAT AN ALTERNATIVE LEACHATE MONITORING TECHNIQUE
WOULD DETECT LEAKS AS EFFECTIVELY AS THE PRESCRIBED SYSTEM.
MANY COMMENTERS RAISED OBJECTIONS TO THE LEACHATE MONITORING
REQUIREMENT, ARGUING THAT IT WAS EXPENSIVE, REDUNDANT AND TECHNICALLY
INFEASIBLE. SOME COMMENTERS SUGGESTED THAT LEACHATE MONITORING BE USED
IN LIEU OF GROUND-WATER MONITORING OR THAT THE REGIONAL ADMINISTRATOR
HAVE THE OPTION TO WAIVE LEACHATE MONITORING FOR SPECIFIC FACILITY
LOCATIONS OR DESIGNS. THE MOST FREQUENTLY MENTIONED COMMENT WAS THAT IT
WAS VIRTUALLY IMPOSSIBLE TO INSTALL LEACHATE MONITORING SYSTEMS AT
EXISTING LANDFILLS AND SURFACE IMPOUNDMENTS.
WHILE EPA STILL BELIEVES THAT LEACHATE MONITORING CAN BE AN EFFECTIVE
AND USEFUL DETECTION DEVICE IN ADDITION TO GROUND-WATER MONITORING, THE
AGENCY HAS DECIDED NOT TO REQUIRE LEACHATE MONITORING DURING THE INTERIM
STATUS PERIOD. THIS DECISION IS BASED ON THE TECHNICAL PROBLEMS
ASSOCIATED WIT H SUCH A SYSTEM AT LANDFILLS AND SURFACE IMPOUNDMENTS.
MONITORING OF LEACHATE IN THE AERATION ZONE HAS NOT BEEN WIDELY USED TO
DATE. EPA IS AWARE OF RESERACH INVESTIGATIONS OF THE USE OF LYSIMETERS
AND OTHER TECHNIQUES TO MONITOR LEACHATE, BUT IS NOT AWARE OF ANY
APPLICATIONS OF AERATION ZONE MONITORING BENEATH A FULL-SIZED DISPOSAL
FACILITY TO DETERMINE WHETHER THE FACILITY IS LEAKING.
AVAILALBE LEACHATE MONIROTING TECHNOLOGY GENERALLY INVOLVES THE
PLACEMENT OF PROBES (LYSIMETERS) BENEATH THE DISPOSAL FACILITY. SINCE
EACH PROBE IS NOT GENERALLY CAPABLE OF MONITORING A LARGE AREA, MANY OF
THEM WOULD HAVE TO BE PLACED UNDER A FACILITY IN ORDER TO DETECT A
LOCALIZED FLAW IN THE LANDFILL DESIGN. IT MAY NOT BE POSSIBLE TO PLACE
SUCH DEVICES BELOW AN EXISTING LANDFILL OR SURFACE IMPOUNDMENT WITHOUT
COMPLETELY REMOVING THE WASTE AND REDESIGNING THE FACILITY. MOREOVER,
ONCE SUCH A SYSTEM IS IN PLACE, THE PROBES TEND TO FAIL OVER TIME DUE TO
DETERIORAT ION OR PLUGGING. IT IS DIFFICULT TO DETERMINE WHEN SUCH A
FAILURE OCCURES AND, IF DISCOVERED, THE DAMAGE IS GENERALY IRREPARABLE.
UNDER THESE CIRCUMSTANCES EPA DOES NOT BLIEVE THAT LEACHATE MONITORING
SHOULD BE A GENERAL REQUIREMENT FOR LANDFILL AND SURFACE IMPOUNDMENTS
DURING INTERIM STATUS. THE AGENCY WILL CONTINUE TO EXAMINE THE
APPROPRIATENESS OF LEACHATE MONITORING AT AT NEW LANDFILLS AND SURFACE
IMPOUNDMENTS. DEPENDING UPON THE RESULTS OF THESE STUDIES, THE AGENCY
MAY INCLUDE LEACHATE MONITORING REQUIREMENTS IN THE PHASE II OR PHASE
III REGULATIONS.
AT LAND TREATMENT FACILITIES, HOWEVER, SOIL PORE WATER MONITORING
(THE EQUIVALENT OF LEACHATE MONITORING) IS FEASIBLE, EVEN AT EXISTING
FACILITIES. SUCH A SYSTEM CAN PROVIDE VALUABLE INFORMATION ON THE
EFFECTIVENESS OF THE LAND TREATMENT PROCESSES OCCURRING IN THE SOIL.
HOWEVER, IT IS NO SUBSTITUTE FOR GROUND-WATER MONITORING FOR DETERMINING
ACTUAL CONTAMINATION OF GROUND WATER. THIS REQUIREMENT IS DISCUSSED IN
MORE DETAIL IN THE "LAND TREATMENT" PORTION OF THIS PREAMBLE.
EPA BELIEVES THAT A RELIANCE ON GROUND-WATER MONITORING, INSTEAD OF
LEACHATE MONITORING AT LANDFILLS AND SURFACE IMPOUNDMENTS WILL
ADEQUATELY PROTECT HUMAN HEALTH AND THE ENVIRONMENT AS WILL BE DESCRIBED
LATER, THE MONITORING SYTEM REQUIRED FOR ALL SUCH FACILITIES RELIES ON
TESTING FOR INDICATOR PARAMETERS AT THE EDGE OF THE WASTE MANAGEMENT
AREA. SUCH A SCHEME SHOULD GIVE THE OWNER OR OPERATOR, AS WELL AS EPA,
A RELATIVELY PROMPT INDICATION OF ANY LEAKAGE FROM THE FACILITY INTO
GROUND WATER.
THE FOLLOWING IS A DISCUSSION OF THE SPECIFIC ELEMENTS OF THE INTERIM
STATUS GROUND-WATER MONITORING REQUIREMENT:
1. APPLICABILITY. THE PROPOSED REGULATIONS SPECIFIED A MINIMUM
GROUND-WATER MONITORING SYSTEM, CAPABLE OF DETECTING AND IDENTIFYING
HAZARDOUS WASTE OF ITS CONSTITUENTS IF THEY ENTERED AN UNDERLYING
ACQUIFER IN SUFFICIENT QUANTITIES TO CAUSE A "SIGNIFICANT" CHANGE IN
GROUND-WATER QULITY.
THE PROPOSED REGULATION CONTAINED A VARIANCE TO THE EFFECT THAT A
GROUND-WATER MONITORING SYSTEM WOULD NOT BE REQUIRED, OR A LESSER DEGREE
OF GROUND-WATER MONITORING COULD BE USED, IF THE OWNER OR OPERATOR COULD
DEMONSTRATE, AT THE TIME A PERMIT WAS ISSUED, THAT GEOLOGIC AND
HYDROLOGIC CONDITIONS UNDERLYING THE FACILIT- INDICATED NO POTENTIAL FOR
DISCHARGE TO GROUND WATER. SOME COMMENTERS ARGUED THAT THE CURRENT
STATE OF KNOWLEDGE ABOUT MONITORING SYSTEM OTHER THAN THE INDICATOR
PARAMETER MONITORING SYSTEM DISCUSSED BELOW. IN THIS CASE HE MUST
IMPLEMENT THE GROUND-WATER QUALITY ASSESSMENT PROGRAM DISCUSSED IN
DETAIL LATER.
IN THESE FINAL INTERIM STATUS REGULATIONS, THE AGENCY HAS AGAIN
INCORPORATED A VARIANCE WITHIN THE GROUND-WATER MONITORING REQUIREMENT.
AS THE COMMENTERS SUGGESTED, A LESSER DEGREE OF GROUND-WATER MONITORING
WILL BE ALLOWED IN THOSE CIRCUMSTANCES WHERE AN OWNER OR OPERATOR CAN
DEMONSTRATE TO THE REGIONAL ADMINISTRATOR THAT THERE IS A LOW POTENTIAL
FOR HAZARDOUS WASTE CONSTITUENTS TO MIGRATE TO WATER SUPPLY WELLS OR TO
SURFACE WATER VIA THE UPPERMOST AQUIFER. (MIGRATION VIA THE UPPERMOST
AQUIFER INCLUDES MIGRATION THROUGH SUCH AN AQUIFER TO A DEEPER AQUIFER
HYDRAULICALLY CONNECTED TO WATER SUPPLY WELLS OR SURFACE WATERS.) A
COMPLETE WAIVER OF MONITORING IS ONLY AVAILALBE WHEN THE OWNER OR
OPERATOR CAN DEMONSTRATE THAT THERE WILL BE NO POTENTIAL FOR MIGRATION
TO WATER SUPPLY WELLS OR SURFACE WATER.
AN OWNER OR OPERATOR WHO WISHES TO INSTALL A LESSER DEGREE OF
MONITORING MUST DOCUMENT THE JUSTIFICATION FOR SUCH AN APPROACH.
THAT WRITTEN DEMONSTRATION MUST BE CERTIFIED BY A QUALIFIED
GEOLOGIST OR GEOTECHNICAL ENGINEER, KEPTON THE FACILITY PREMISES,
AND, DURING INTERIM STATUS, PROVIDED TO THE REGIONAL ADMINISTRATOR
UPON HIS REQUEST. SUCH A DEMONSTRATION TO SUPPORT A LESSER DEGREE O
MONITORING MUST INCLUDE AN EVALUATION OF (1) A WATER BALANCE OF
PRECIPITATION, EVAPOTRANSPIRATION, RUNOFF AND INFILTRATION; (2)
CHARACTERISTICS OF THE SATURATED AND UNSATURATED ZONES; AND (3)
THE PROXIMITY OF THE FACILITY TO WATER SUPPLIES OR SURFACE WATERS.
THE AGENCY DOES NOT BELIEVE THAT AQUIFERS UNDERLYING THE FACILITY
THAT DO NOT QUALIFY AS UNDERGROUND SOURCES OF DRINKING WATER SHOULD
BE EXEMPTED FROM CONSIDERATION. SUCH AQUFIERS MAY HAVE OTHER USES
WORTHY OF PROTECTION, OR MAY BE HYDRAULICALLY CONNECTED TO OTHER WAT
SUPPLY WELLS OR SURFACE WATERS NEEDING PROTECTION.
RCRA'S GOAL OF PROTECTING HUMAN HEALTH AND THE ENVIRONMENT DOES NOT
ALLOW THE AGENCY TO REDUCE THE BASIC MONITROING REQUIREMENTS SIMPLY
BECUASE OF THE COST. EPA HAS ALSO REJECTED A CONSIDERATION OF THE
NATURE OF THE WASTE AND THE FACILITY DESIGN AS GROUND-WATER MONITORING
IS TOO LIMITED TO SERVE AS A BASIS FOR REGULATION. THE MAJORITY OF
COMMENTERS DISCUSSING THIS SECTION, HOWEVER, FOCUSED ON THE VARIANCE
PROVISION, SUGGESTING THAT IT ALLOW CONSIDERATION OF A VARIETY OF
FACTORS. THESE INCLUDED THE EXISTING SUITABILITY OF THE ACQUIFER AS AN
UNDERGROUND SOURCE OF DRINKING WATER, WASTE CHARACTERISTICS, EXPENSE OF
MONITORING AND FACILITY DESIGN.
SOME COMMENTERS SUGGESTED RELAXING THE VARIANCE BY CHANGIING "NO
POTENTIAL" TO "LOW POTENTIAL", SOME THOUGHT MONITORING SHOULD BE
REQUIRED ONLY OVER AN UNDERGROUND SOURCE OF DRINKING WATER. OTHER
COMMENTERS SUGGESTED THAT FOR DEEP WATER TABLES, AS IN THE WEST, A
TECHNIQUE WOULD BE APPROPRIATE.
THESE FINAL INTERIM STATUS REGULATIONS REQUIRE OWNERS AND OPERATORS
TO IMPLEMENT A GROUND-WATER MONITORING PROGRAM, INCLUDING THE
INSTALLATION, OPERATION, AND MAINTENANCE OF A MONITORING SYSTEM
SPECIFIED IN THE REGULATIONS. THE PROGRAM MUST BE CAPABLE OF
DETERMINING THE FACILITY'S IMPACT ON GROUND-WATER QUALITY IN
THEUPPERMOST ACQUIFER UNDERLYING THE FACILITY. WHILE EPA ACKNOWLEDGES
THAT GROUND-WATER MONITORING IS COMPLICATED AND THAT THE CURRENT STATE
OF KNOWLEDGE WILL CONTINUE TO BE IMPROVED, ADEQUATE MONITORING METHODS
FOR DETECTING CONTAMINANT MIGRATION ARE AVAILABLE. IN LIGHT OF THE
CRUCIAL ROLE WHICH SUCH MONITORING PLAYS IN THE ASSESSMENT OF
ENVIRONMENTAL DAMAGE, A GROUND-WATER MONITORING PROGRAM MUST BE A BASIC
ELEMENT OF ANY DISPOSAL ACTIVITY. THE AGENCY WILL CONTINUE TO REFINE
THESE REGULATIONS AS THE STATE OF THE TECHNOLOGY IMPROVES.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 040 OF 106
COSTLE D M ADMINISTRATOR
EPA
113404
REGULATION
IN FOCUSING ON THE UPPERMOST AQUIFER, EPA DOES NOT MEAN TO SUGGEST
THAT IT IS UNCONCERNED ABOUT CONTAMINATION OF DEEPER AQUIFERS. THE
MONITORING PROGRAM SEEKS TO DETECT CONTAMINATION OF THE UPPERMOST
AQUIFER BECAUSE THAT WILL BE THE FIRST GROUND WATER TO BE AFFECTED BY A
LEAKING DISPOSAL FACILITY. IF AN OWNER OR OPERATOR KNOWNS, OR WISHES TO
ASSUME, THAT HIS FACILITY IS CONTRIBUTING HAZARDOUS WASTE CONSTITUTENTS
TO THE GROUND WATER, THE REGULATIONS ALLOW HIM TO INSTALL AND OPERATE A
GROUND-WATER A BASIS FOR REDUCED MONITORING REQUIREMENTS. EPA DOES NOT
BELIEVE THAT THE STATE OF KNOWLEDGE ABOUT HAZARDOUS WASTES AND FACILITY
DESIGNS IS SUFFICIENTLY CERTAIN TO JUSTIFY REDUCTIONS IN THE BASIC
MONITORING SYSTEM DURING INTERIM STATUS.
2. GROUND-WATER MONITORING SYSTEM. THE PROPOSED REGULATION REQUIRED
THE INSTALLATION OF AT LEAST FOUR WELLS. AT LEAST ONE WELL WAS TO BE
LOCATED HYDRAULICALLY UPGRADIENT TO YIELD SAMPLES OF BACKGROUND
GROUND-WATER QUALITY. AT LEAST THREE WERE TO BE LOCATED HYDRAULICALLY
DOWNGRADIENT IN ORDER TO DETECT MIGRATION FROM THE FACILITY. ONE OF THE
THREE WELLS HAD TO BE LOCATED AT THE SOLID WASTE BOUNDARY. THE
DOWNGRADIENT WELLS WERE TO BE PLACED AT DIFFERENT DEPTHS IN ORDER TO
DETECT POTENTIAL MIGRATION. OWNERS AND OPERATORS WERE RQUIRED TO CASE
THEIR WELLS AND BACKFILL THE ANNULAR SPACE IN ORDER TO PREVENT MIGRATION
OF WATER DOWN THE WELL BORE. THE MOST FREQUENT COMMENT RECEIVED ON
THESE ERQUIREMENTS REQUESTED A MORE FLEXIBLE APPROACH TO GROUND-WATER
MONITORING. COMMENTERS WERE CONCERNED THAT THE AGENCY WAS PROPOSING
RIGID REQUIREMENTS WHICH WOULD BE TOO DIFFICULT TO IMPLEMENT,
CONSIDERING THE HIGHLY VARIABLE NATURE OF SUBSURFACE CONDITIONS. THEY
EXPRESSED CONCERN OVER THE RQUIRED NUMBER, PALCEMENT, AND DEPTH OF WELLS
AND SUGGESTED VARIOUS OPTIONS.
SEVERAL COMMENTERS DISCUSSED THE REQUIREMENT FOR A MINIMUM NUMBER OF
WELLS ARGUING THAT THE NUMBER OF WELLS NEEDED WILL VARY WITH CONDITIONS
SUCH AS THE HYDROGEOLOGY OF THE AREA, THE SIZE OF THE FACILITY, AND THE
CONFIGURATION OF THE WASTE MANGEMENT AREA. SOME COMMENTERS BELIEVED
THAT THE PROPOSED MINIMUM NUMBER OF WELLS WAS ADEQUATE WHILE OTHER
SUGGESTED ONE, TWO OR MORE THAN THREE WELLS.
THESE FINAL REGULATIONS REQUIRE THAT THE OWNER OR OPERATOR DRILL A
SUFFICIENT NUMBER OF WELLS TO CHARACTERIZE THE POTENTIAL CONTAMINATION
OF GROUND-WATER QUALITY CAUSED BY THIS HAZARDOUS WASTE FACILITY. ON THE
UPGRADIENT SIDE OF THE WASTE MANAGEMENT AREA THIS MANS THAT THERE MUST
BE ENOUGH WELLS (AT LEAST ONE) TO CHARACTERIZE BACKGROUND GROUND-WATER
QUALITY IN THE UPPERMOST AQUIFER. THE OWNER OR OPERATOR MUST ASSURE
THAT THE UPGRADIENT SAMPLES REPRESENT TRUE BACKGROUND CONDITIONS AND ARE
NOT CONTAMINATED BY THE FACILITY.
THERE MUST ALSO BE A SUFFICIENT NUMBER OF DOWNGRADIENT WELLS TO
PROVIDE REPRESENTATIVE SAMPLES CAPABLE OF DETECTING MIGRATION OF
HAZARDOUS WASTE CONSTITUENTS FROM THE FACILITY. EPA HAS RETAINED ITS
REQUIREMENT THAT A MINIMUM OF THREE WELLS SHOULD BE DRILLED AT THE
DOWNGRADIENT SIDE OF THE WASTE MANAGEMENT AREA. THIS NUMBER WAS
RECOMMENDED TO THE AGENCY BY SEVERAL RESPECTED GROUPS FAMILIAR WITH
GROUND-WATER MONITORING AT DISPOSAL FACILITIES. THE PUBLIC COMMENTS DID
NOT PRESENT A SPECIFIC RATIONALE FOR ANY OTHER MINIMUM NUMBER OF WELLS.
WHILE THE AGENCY HAS MAINTAINED IN THE REGULATIONS THE
REQUIREMENT FOR A MINIMUM OF THREE WELLS, IT EXPECTS THAT
MANY FACILITIES WILL HAVE TO DRILL MORE THAN THREE WELLS BECAUSE
OF THE SIZE OF THE FACILITY OR BECAUSE OF THE SIZE OF THE
FACILITY OR BECAUSE OF THE COMPLEX HYDROGEOLOGY BELOW THE FACILITY.
ULTIMATELY THE BURDEN IS ON THE OWNER OR OPERATOR TO DEVELOP THE
MONITORING SYSTEM NECESSARY TO ACCURATELY CHARACTERIZE THE AQUIFER
AND DETECT MIGRATION. IT SHOULD BE RECOGNIZED THAT AN OWNER OR
OPERATOR THAT CAN PRESENT A CONVINCING CASE FOR A LOWER NUMBER OS
WELLS HAS THE OPTION OF JUSTIFYING AND INSTALLING SUCH LESSER
MONITORING UNDER THE TERMS OF SECTION 265.90(C) OF THIS REGULATION.
SOME COMMENTERS SUGGESTED THAT EPA SPECIFY A SPACING INTERVAL AND
MAXIMUM OR MINIMUM DEPTHS FOR MONITORING WELLS. OTHER COMMENTERS SOUGHT
MORE FLEXIBILITY IN THE STANDARDS, PARTICULARLY IN DEFINING WELL DEPTH,
TO ALLOW FOR CONSIDERATION OF SITE-SPECIFIC FACTORS. EPA BELIEVES THAT
THE SPACING AND DEPTH OF WELLS SHOULD DEPEND ON THE PARTICULAR PATTERN
OF GROUND-WATER FLOW BELOW A FACILITY , MAKING IT EXTREMELY DIFFICULT TO
SPECIFY NATIONAL MINIMUMS OR MAXIMUMS IN THIS AREA. THUS THE AGENCY HAS
DECIDED TO ELAVE THE SPACING AND DEPTH OF WELLS UP TO THE OWNERS AND
OPEATORS. THEY WILL HAVE TO BE ABLE TO JUSTIFY THEIR SLEECTION OF
MONITORING SYSTEM IN LIGHT OF THE PARTICULAR HYDROGEOLOGY BELOW THEIR
FACILITIES.
COMMENTERS ALSO SUGGESTED THAT THE PLACEMENT OF MONITORING
WELLS BETWEEN THE WASTE BOUNDARY AND THE PROPERTY BOUNDARY BE
A MATTER FOR OWNER OR OPERATOR DISCRETION. TWO OBJECTIONS WERE
RAISED TO PLACEMENT OF WELLS AT THE SOLID WASTE BOUNDARY. FIRST,
COMMENTERS ARGUED THAT SUCH PLACEMENT WAS REDUNDANT IN LIGHT OF THE
REQUIREMENT FOR LEACHATE MONITORING. SECOND, COMMENTERS UUGGESTED
THAT IF WELLS WERE PLACED CLOSED TO ACHIEVE PORTION OF THE
FACILITY, LEACHATE THAT MOVED LATERALLY IN THE SOIK BELOW THE FACILI
WOULD ENTER THE ANNULAR SPACE AROUND THE MONITORING WELL AND
QUICKLY PASS INTO THE GROUNDWATER.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 041 OF 106
COSTLE D M ADMINISTRATOR
EPA
113405
REGULATION
EPA BELIEVES THAT THE MONITORING WELLS SHOULD BE PLACED AS CLOSE TO
THE WASTE BOUNDARY AS POSSIBLE IN ORDER TO GIVE PROMPT INDICATION OF THE
GROUND-WATER CONTAMINATION. THIS PARTICULARLY IMPORTANT SINCE LEACHATE
MONITORING HAS BBEN DELETED. IF SIGNIFICANT GROUND-WATER CONTAMINATION
OCCURS BEFORE DETECTION, THE DIFFICULTIES OF CORRECTIVE ACTION ARE MADE
ALL THE MORE SEVERS. THEREFORE IT IS APPROPRIATE TO PLACE MONITORING
WELLS AT THE EDGE OF THE WASTE MANAGEMENT AREA TO PROVIDE EARLY
DETECTION.
EPA DOES NOTBELIEVE THAT THE PLACEMENT OF WELLS REQUIRED IN THIS
REGULATION PRESENTS A SIGNIFICANT RISK THAT MONITORING WELLS WILL BECOME
CONDUITS FOR LEACHATE PASSING TO GROUND WATER. EPA EXPECTS THAT MOST OF
THE LEACHATE FLOW WILL BE VERTICAL RATHER THAN HORIZONTAL. IN ADDITION,
THE REGULATION CALLS FOR MONITORING AT THE EDGE OF THE WASTEMANAGEMENT
AREA RATHER THAN THE SOLID WASTE ITSELF. THIS IS TO ELIMINATE ANY
SUGGESTION THAT THE WELLSSHOULD BE DRILLED THROUGH ANY NATURAL OR
ARTIFICAL BARRIER THAT MAY CONTAIN THE WASTE. THE THE PROBLEM OF
MIRGRATION OF LEACHATE WILL BE REDUCED BY PLACE MONITORING WELLS OUTSIDE
OF ANY SUCH CONTAINMENT BARRIER. LASTLY, THE REGULATIONS CALL FOR
BACKFILLING OF THEANNULAR SPACE AROUND THE MONITORING WELL CASING, WHICH
SHOULD REDUCE THE RISK OF THE "CONDUIT" PROBLEM.
THE FEW COMMENTS THAT ADDRESSED THE REQUIREMENTS FOR CASING WELLS AND
BACKFILLING THE ANNULAR SPACE GENERALLY SOUGHT FURTHER CLARIFICATION OF
THE AGENCY'S INTENT FOR THE REQUIREMENT. ONE COMMENTER SUGGESTED THAT
THE TERM "CASING" BE CLARIFIED. OTHER COMMENTERS SUGGESTED DESIGN
MEASURES, SUCH AS GRAVEL OR SAND PACKING, THAT WOULD IMPROVE THE WELL'S
CAPACITY TO PROVIDE REPRESENTATIVE SAMPLES. ANOTHER COMMENTER SUGGESTED
THAT EPA DELETE THE REQUIREMENT THAT BACKFILL BE "IMPERMEABLE" BECUASE
NO BACKFILL MATERIAL IS TRULY IMPERMEABLE.
GENERALLY EPA BELIEVES THAT THIS PROVISIONSOULD BE MORE
PERFORMANCE-ORIENTED. THUS THE FINAL PART 265 REGULATION SPECIFIES THAT
THE CASING CONSTRUCTION AND ANY NECESSARY GRAVEL OR SAND PACKING SHOULD
BE DIRECTED TOWARD THE OBJECTIVE OF COLLECTING SAMPLES AT THE
APPROPRIATE AQUIFER FLOW ZONE AND OF PROTECTING THE INTEGRITY OF THE
BORE HOLE. AN OPEN HOLD WOULD NOT PROVIDE SUCH ASSURANCES AND THUS IT
IS CLEAR THAT SOME WELL PIPE STRUCTURE CAPABLE OF DRAWING SAMPLES AT
SELECTED DEPTHS IS REQUIRED. LIKEWISE BACKFILLING SHOULD BE DIRECTED AT
ASSURING THE SAMPLES AND THE GROUND WATER ITSELF ARE NOT CONTAIMINATED,
RATHER THAN THE QUESTION OF WHETHER PARTICULAR MATERIALS ARE TRULY
IMPERMEABLE. THE REGULATION, THEREFORE HAS BEEN CHANGED TOMAKE CLEAR
THAT THOSE ARE THE OBJECTIVES OF THE WELL DESIGN PROVISION. FINALLY,
THESE REGULATIONS DO NOT REQUIRE SEPARATE MONITORING SYSTEMS FOR EACH
COMPONENT OF A FACILITY THAT CONSISTS OF MORE THAN ONE LANDFILL,
IMPOUNDMENT OR LAND TREATEMENT AREA. THE AGENCY'S PAST AND PRESENT
INTENT WAS AND IS THAT THE GROUND-WATER MONITORING SYSTEM WOULD BE
INSTALLED A T THE PERIMETER OF THE WASTE MANAGEMENT AREA. THATINTENT IS
SPECIFICALLY STATED IN THESE REGULATIONS.
3. SAMPLING AND ANALYSIS. THE PROPOSED REGULATIONS REQUIRED THE
OWNER OR OPERATOR TO ESTABLISH THE BACKGROUND GROUND-WATER QUALITY OF
THEUNDERLYING AQUIFER FOR A "COMPREHENSIVE" SET OF OVER 40 CONTAMINANTS.
THE DETERMINATION OF THIS BACKGROUND QUALITY WAS TO BE BASED ON MONTHLY
SAMPLING FOR ONE YEAR. THEREAFTER, THE FACILITY WAS TO SAMPLE ANNUALLY
FOR THE "COMPREHENSIVE" LIST. IN ADDITION THE OWNER OR OPERATOR WAS TO
SAMPLE AT SHORTER INTERVALS (THAT DEPENDED ON GROUND-WATER FLOW RATE)
FOR A "ROUTEIN" SET OF CONTAMINANTS. THE "ROUTINE" SET OF CONTAMINANTS.
THE "ROUTINE" LIST OF PARAMATERS INCLUDED SPECIFIC CONDUCTIVITY, PH,
CHLORIDE, TOTAL DISSOLVED SOLIDS, DISSOLVED ORGANIC CARBO AND THE
PRINCIPAL HAZARDOUS CONSTITUENTS IN THE WASTE. A "NOTE" ALLOWED A
REDUCTION IN THE "COMPREHENSIVE" LIST OF CONTAMINANTS FOR THOSE
SUBSTANCES THAT WOULD NOT RESULT FROM THE TREATMENT, STORAGE, OR
DISPOSAL OF A PARTICULAR WASTE.
COMMENTERS QUESTIONED THE NEED FOR MONTHLY SAMPLING TO DETERMINE
BACKGROUND WATER QUALITY, ARGUING FOR A MORE FLEXIBLE APPROACH.
THE AGENCY BELIEVES THAT OBTAINING REPRESENTATIVE BACKGROUND
DATA AT A REASONABLY FREQUENT INTERVAL IS OF CRITICAL IMPORTANCE
IN ESTABLISHING AN ACCURATE GROUND-WATER MONITORING SYSTEM. AS
AN INITIAL STEP, ANNUAL MONITORING IS UNACCEPTABLE BECAUSE IT
CANNOT REFLECT SEASONAL FLUCTUATIONS. THE AGENCY HAS, THEREFORE
DECIDED TO REQUIRE QUARTERLY BACKGROUND MONITORING WHICH SHOULD BE
MORE SENSITIVE TO SEASONAL FLUCTUATIONS. OWNERS AND OPERATORS
ARE CERTAINLY FREE TO MONITOR AT GREATER FREQUENCIES TO PROVIDE A
MORE THOROUGH CHARACTERIZATION OF THE AQUIFER.
SEVERAL COMMENTERS SUGGESTED THAT THE AGENCY SPECIFY PARTICULAR
PROCEDURES FOR SAMPLING, SAMPLE PRESERVATION,AD METHODS OF ANALYSIS.
THE AGENCY IS NOT AT THIS TIME SPECIFYING SUCH PROCEDURES IN THE
REGULATIONS; THERE MAY BE SEVERAL ACCEPTABLE APPROACHES. THUS THE
REGULATIONS REQUIRE THE OWNER OR OPERATOR TO DEVELOP AND FOLLOW A
GROUND-WATER SAMPLING AND ANALYSIS PLAN. THE TERMS OF THE PLAN WILL BE
ENFORCEABLE AGAINST THE OWNER OR OPERATOR. THE PLAN MUST SPECIFY
PROCEDURES FOR SAMPLE COLLECTION, SAMPLE PRESERVATION AND SHIPMENT,
ANALYTICAL PROCEDURES, AND CHAIN OF CUSTODY CONTROL. SIMPLY TO PROVIDE
GUIDANCE IN THIS AREA, A COMMENT IN THE REGULATION SUGGESTS THAT OWNERS
AND OPERATORS CONSIDER USING METHODS CONTAINED IN TWO EPA PUBLICATION:
"PROCEDURES MANUAL FRO GROUND-WATER MONITORING AT SOLID WASTE DISPOSAL
FACILITIES" (AUGUST 1977) AND "METHODS FOR CHEMICAL ANALYSIS OF WATER
AND WASTES" (MARCH 1979).
EPA RECEIVED MANY COMMENTS ON THE LIST OF PARAMETERS TO BE USED IN
THE SAMPLING PROGRAM. THOSE WHO ARGUED THAT THE LIST WAS TOO EXTENSIVE
SAID THAT SOME PARAMETERS WERE REDUNDANT AND THAT VARIANCES SHOULD BE
ALLOWED FOR CONTAMINANTS NOT EXPECTED TO BE IN THE WASTE. THEY ALSO
SUGGESTED THAT THE "ROUTINE" SET OF CONTAMNANTS SHOULD BE SHORT AND BE
USED TO TRIGGER THE NEED FOR MORE EXTENSIVE MONITORING. THOSE WHO
BELIEVED THAT THE LIST WAS NOT EXTENSIVE ENOUGH ARGUED THAT BRAOD
PARQMETERS SUCH AS DISSOLVED ORGANIC CARBON, BIOCHEMICAL OXYGEN DEMAND,
AND CHEMICAL OXYGEN DEMAND WERE INSUFFICENTLY SENSITIVE TO DETECT SOME
HIGHLY TOXIC ORGANICS WHICH ARE DANGEROUS AT LOW LEVELS. IN ADDITION,
THEY SUGGESTED THAT THE GROUND-WATER LEVEL BE RECORDDED BECAUSE SUCH
FLUCTUATIONS MAY REQUIRE MODIFICATION OF THE SAMPLING PROGRAM TO MAKE IT
EFFECTIVE.
THE FINAL REGULATIONS DROP THE REFERENCE TO "COMPREHENSIVE" AND
"ROUTEIN" PARAMETERS. THE REGULATIONS REQUIRE MONITORING FOR THREE SETS
OF PARAMATERS THAT EACH SERVE A DIFFERENT PURPOSE.
THE FIRST SET REFLECT THE AQUIFER'S SUITABILITY AS DRINKING WATER
SUPPLY. THESE PARAMTERS PARAMETERS, CONTAINED IN APPENDIX III, ARE
THOS- SPECIFIED IN THE INTERIM PRIMARY DRINKING WATER REGULATIONS
ESTABLISHED UNDER THE SAFE DRINKING WATER ACT. OWNERS AND OPERATORS
ARE TO TEST FOR THESE PARAMETERS QUARTERLY DURING THE FIRST YEAR
ONLY AND REPORT THIS INFORMATION TO THE REGIONAL ADMINISTRATOR.
WHILE THE AGENCY IS CONCERNED ABOUT GROUND-WATER PROTECTION FOR A
VARIETY OF PURPOSES USE OF GROUND WATER AS A DRINKING WATER SOURCE IS OF
PARTICULAR CONCERN.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 042 OF 106
COSTLE D M ADMINISTRATOR
EPA
113406
REGULATION
THESE INTERIM STATUS REGULATIONS DO NOT ESTABLISH A SPECIFIC
GROUND-WATER PROTECTION STANDARD, BUT THE AGENCY HAS DECIDED THAT THE
PHASE II REGULATIOS WILL, AT A MINIMUM, BE DESIGNED TO PROTECT DRINKING
WATER SUPPLIES. THE PURPOSE OF THE INTIAL SAMPLING FOR DRINKING WATER
PARAMETERS IS TO IDENTIFY FACILITIES THAT MAY BE SEVERELY DEGRADING
PRESNT AND FUTURE DRINKING WATER SUPPLIES, THE FACT THAT A PARTICULAR
AQUIFER IS BECOMING UNSUITABLE AS A DRINKING WATER SOURCE WILL BE USEFUL
TO THE AGENCY IN ESTABLISHING PRIORITIES FOR PERMITS. THE AGECNY WILL
FOCUS ITS INITIAL ATTENTION ON FACILITIES WHICH APPERA TO BE HAVING THE
GREATEST EFFECT ON AN AQUIFER'S SUITABILITY AS A DRINKING WATER SUPPLY.
BUT USING CONTAMINANTS FROM THE INTERIM PRIMARY DRINKING WATER
REGULATIONS THE AGENCY DOES NOT MEAN TO SUGGEST THAT THIS SPECIFIES A
COMPLETE LIST OF THE PARAMETERS THAT DEFINE AN AQUIFER'S POTENTIAL AS AN
ACCEPTABLE DRINKING WATER SUPPLY, BUT THESE CONTAMINANTS WILL BE USEFUL
TO THE AGENCY IN ESTABLISHING ITS PRIORITIES.
THE SECOND SET OF PARAMETERS INCLUDES CHLORIDE, IRON, MANGANESE,
PHENOLS, SODIUM, AND SULFATE. THESE PARAMETERS ARE GENERALLY RECOGNIZED
AS USEFUL FOR CHARACTERIZING GROUND-WATER QUALITY THESE CONTAMINANTS ARE
UBIQUITOUS IN THE ENVIRONMENT AND ARE OFTEN USED TO CHARACTERIZE A
GROUND-WATER SUPPLY'S SUITABILITY FOR A VARIETY OF USES. THE OWNER OR
OPERATOR IS TO DRAW QUARTERLY SAMPLES FOR THESE PARAMETERS DURING THE
FIRST YEAR AND ANNUALLY THEREAFTER, INFORMATION ON THESE PARAMETERS WILL
BE USEFUL IN ANY ASESSMANT OF GROUND-WATER CONTAMINATION THAT FOLLOWS
THE DETERMINATION THAT A FACILITY IS LEAKING. SUCH INFORMATION WILL,
FOR EXAMPLE, ASSIST THE AGENCY IN DETERMINING THE EXTENT TO WHICH
CONTAINATION OF THE AQUIFER MAY BE COMING FROM SOURCES OTHER THAN THE
DISPOSAL FACILITY.
THE THIRD SET OF PARAMETERS CONSISTS OF FOUR INDICATORS THAT WILL BE
USED TO DETERMINE WHETHER A FACILITY IS LEAKING. AS INDICAT-D EARLIER
THE AGENCY WILL BE DEVELOPING ITS GROUND-WATER PROTECTION STRATEGY AS
PART OF THE PHASE II REGULATIONS. FOR ANY SUCH STANDARD IT WILL BE
IMPORTANT FOR A FACILITY TO ANSWER THE THRESHOLD QUSTION OF WHETHER
HAZARDOUS WASTE CONSTITUENTS ARE ENTERING THE AQUIFER UNDERLYING THE
FACILITY. THEFOUR INDICATORS SPECIFIC CONDUCTANCE, PH, TOTAL ORGANIC
CARBON, AND TOTAL ORGANIC HALOGEN -- REFLECT CHANGES IN THE ORGANICS AN
INORGANIC MAKEUP OF THE GROUN-WATER. A STATISTICALLY SIGNIFICANT CHANGE
(INCREASE OR DECREASE FOR PH, INCREASE ONLY FOR THE OTHERS) IN THESE
INDICATORS BETWEEN THE ITIAL BACKGROUND CONCENTRATION OR VALUE AND THOSE
FROM DOWNGRADIENT WELLS SUGGESTS THAT ORGANIC OR INORGANIC SUBSTANCES
ARE BEING INTRODUCED INTO THE AQUIFER BY THE FACILITY.
INCREASES IN SPECIFIC CONDUCTANCE INDICATE THE PRESENCE OF INORGANIC
SUBSTANCES IN THEGROUND WATER. LIKEWISE INCREASES OR DECREASES IN
PH SUGGEST THE PRESENCE OF INORGANIC CONTMINATION. TOTAL ORGANIC
CARBON (TOC) AND TOTAL ORGANIC HALOGEN (TOX) CONCENTRATIONS IN GROUN
WATER TENT TO INCREASE AS A RESULT OF ORGANIC CONTRIBUTIONS FORM
A HZARDOUS WASTEFACILITY. THE METHODOLOGY TO SAMPLE AND
ANALYZE FOR THESE INDICATORS IS PRESENTLY AVAILABLE. EPA BELIEVES
THAT MONITORING THESE INDICATORS WILL BE SUFFICIENT TO MAKE THE
THRESHOLD ASSESSMENT OF WHETHER A FACILITY IS LEAKING. CERTAIONLY
OWNERS AND OPERATORS ARE FREE TO PERFORM MORE EXTENSIVE MONITORING.
SINCE GROUND WATER MONITORING DATA FOR THE INDICATOR PARAMATERS IS
TO BE EVALUATED STATISTICALLY, THE AGENCY HAS SPECIFIED THAT EACH
DETERMINATION OF THE CONCENTRATION OF VALUE OF AN INDICATOR
PARAMETER IN A GROUND WATER SAMPLE BE BASED UPON A MINIMUM OF FOUR
REPLICATE MEASUREMENT. THIS NUMBER OF REPLICATES, USING
GENERALLY ACCEPTED TECHNIQUES, WILL ASSURE A REASONABLE DEGREE OF
ACCURACY, NEEDED FOR THE SPECIFIED STATISTICAL TESTING, WHICH IS
EXPLAINED IN THE NEXT SECTION.
EPA AGREESWITH THE COMMENTER WHO SUGGESTED THAT A DETERMINATION OF
THE GROUND-WATER ELEVATIN SHOULD BE MADE EACH TIME A SAMPLE IS TAKEN.
SUCH INFORMATION W ILL ASSIST THE OWNER OR OPERATOR IN DETERMINING
WHETHER THE MONITORING SYSTEM IS DRAWING SAMPLES FROM APPROPRIATELY
LOCATED WELLS. THE REGULATION, THEREFORE, INCLUDES A REQUIREMENT THAT
GROUND-WATER ELEVATION BE DETERMINED EACH TIME A SAMPLE IS OBTAINED.
IN RESPONSE TO COMMENTERS EPA HAS SPECIFIED A TWO-STAGE MONITORING
SYSTEM; BROAD INDICATORS ARE USED INTIALLY TO DETERMINE WHETHER A
FACILITY IS LEAKING. IF SUCH LEAKING IS DETECTED A MORE SPECIFIC
GROUND-WATER QUALITY ASSESSMENT PROGRAM, DESCRIBED LATER IN THIS
PREAMLBE, IS INITIATED, EPA BELIEVES THAT THE USE OF BROAD PARAMETERS AS
INDICATORS IS AN APPROPRIATE STRATEGY TO DETERMINE WHETHER A FACILITY IS
LEAKING. IN RESPONSE TO THE GENERAL CONCERN EXPRESSED BY COMMENTERS ON
THE NUMBER OF PARAMETERS TO BE MONITORED, EPA HAS LIMITED ITS
REQUIREMENTS FOR INDICATOR MONITORING TO FOUR PARAMETERS WHICH ARE
NECESSARY, AT A MINIMUM, TO DETECT LEAKS. IT IS UNLIKELY THAT A
FACILITY WOUDL SELECTIVELY EMIT LOW LEVELS OF HIGHLY TOXIC ORGANICS THAT
WOULD THEREBY MISS DETECTION.
4. PREPARATION, EVALUATION, AND RESPONSE. ACCORDING TO THE PROPOSED
REGULATIONS, DETECTION OF SIGNIFICANT CHANGES IN GROUND-WATER QUALITY
REQUIRED THE OPERATOR TO NOTIFY THE AGENCY, TO DETERMINE THE CAUSE AND
THE EXTENT OF CONTAMINATION, AND TO DISCONTINUE THE FACILIT'S OPERATION.
COMMENTS RECEIVED SHOWED THAT THE PROPOSED LANGUAGE DID NOT CLEARLY
INDICATE WHETHER THESE ACTIONS SHOULD BE TAKEN SIMULTANEOUSLY OR
SEQUENTIALLY. COMMENTERS STATED TAHT DISCONTINUING OPERATIONS, BASED
SOLELY UPON A STATISTICALLY SIGNIFICANT MONITORING RESULT, WAS
UNJUSTIFIED.
THE FINAL REGULATIONS HAVE BEEN REVISED TO REMOVE AMBIGUITIES.
ALSO, RATHER THAN REQUIRING THAT FACILITY OPERATIONS CEASE, THE
FINAL REGULATIONS SPECIFY A SEQUENTIAL APPROACH. UPON DETECTING ANY
SUSPECTED DISCHARGE FROM THE FACILITY BY STATISTICAL EVALUATION OF
THE GROND-WATER MONITORING DATA, THE OWNER OR OPERATOR IS REQUIRED T
NOTIFY THE REGIONAL ADMINISTRATOR, WITHIN ONE WEEK OF ANY SUCH
DETECTION, THAT HIS FACILITY MAY BE CONTAMINATING THE GROUND WATER.
HE MUST ALSO, WITHIN 15 DAYS AFTER THIS NOTIFICATION, DEVELOP AND
SUBMIT TO THE REGIONAL ADMINISTRATOR A PLAN, CERTIFIED BY A
QUALIFIED GEOLOGIST OR GEOTECHNICAL ENGINEER, FOR ASSESSING THE
QUALITY OF THE GROUND WATER. THEREGULATIONS REQUIRE THAT
AN OUTLINE OF SUCH A GROUND-WATER QUALITY ASSESSMENT PROGRAM
BE DEVELOPED AND KEPT ON-HAND AT THE FACILITY BY THE TIME
MONITORING IS INITIATED. THE PLAN MUST SPECIFY; THENUMBER,
LOCATION, AND DEPTHS OF MONITORING WELLS TO BE USED FOR THE ASSESSME
THE SAMPLING, ANALYSIS, AND EVALUATION PROCEDURES TO BE FOLLOWED; AN
A SCHEDULE OF IMPLEMENTATION. THEOWNER OR OPERATOR MUST THEN
IMPLEMENT THIS PLAN AND DETERMINE AS QUICKLY AS TECHNICALLY
FEASIBLE THE RATE AND EXTENT OF MIGRATION AND CONCENTRATION OF
HAZARDOUS WASTE AND HAZARDOUS WASTE CONSTITUTENTS FROM
THEFACILITY IN THEGROUND WATER. WITHIN 15 DAYS AFTER COMPLETION
OF THE FIRST REGIONAL ADMINISTRATOR A REPORT CONTAINING THE RESULTS
OF THE GROUND-WATER QUALITY ASSESSMENT. IF THE OWNER OR OPERATOR
CAN DEMONSTRATE, USING NEWLY ACQUIRED AND PREVIOUSLY GATHERED
GROUND-WATER MONITORING DATA (INCLUDING DEVELOPED TO SATISFY
SECTION 265.92(B)(2)), THAT HIS FACILITY IS NOT CONTRIBUTING
HAZARDOUS WASTE OR HAZARDOUS WASTE CONSTITUENTS TO THE
GROUND WATER, HE MUST SO STATE IN THE REPORT AND MAY REINSTATE HIS
ORIGINAL GROUND-WATER MONITORING PROGRAM.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 043 OF 106
COSTLE D M ADMINISTRATOR
EPA
113407
REGULATION
HOWEVER, IF HIS ASSESSMENTSHOWS THAT HAZARDOUS WASTE CONSTITUENTS
FROM HIS FACILITY ARE ENTERING THE GROUND WATER, HE MUST REPEAT THE
GROUNDWATER ASSESSMENT AT LEAST QUARTERLY THEREAFTER, UNTIL FINAL
CLOSURE OF THE FACILITY.
DETECTION OF STATISTICALLY SIGNIFICANT CHANGES IN THE INDICATOR
PARAMETERS IN THE UPGRADIENT WELLS DOES NOT REQUIRE IMPLEMENTATION OF
GROUND-WATER QUALITY ASSESSMENT PROGRAM. THIS INFORMATION MAY BE USEFUL
AT A LATER TIME, THOUGH, IN DEMONSTRATING THAT SIGNIFICANT CHANGES IN
DOWNGRADIENT WATER QUALITY RESULTED FROM SOURCES OTHER THAN THE
HAZARDOUS WASTE FACILITY.
AS INDICATED EARLIER, AN OWNER OR OPERATOR MAY INSTALL AN ALTERNATE
GROUND-WATER MONITORING SYSTEM IF HE FEELS THAT MONITORING FOR INDICATOR
PARAMETERS WOULD SHOW THAT HIS FACILITY WAS AFFECTING THE GROUND WATER.
ANY SUCH ALTERNATE MONITORING PROGRAM MUST BE ABLE TO PROVIDE THE ABOVE
DESCRIBED GROUND-WATER QUALITY ASSESSMENT.
THE FINAL RULE SPECIFIES DIFFERENT REQUIREMENTS FOR THE DUREATION OF
GROUND-WATER MONITORING DEPENDING UPON THE OPERATING STATUS OF THE
FACILITY AND THE MONITORING PROGRAM UTILIZED.
MONITORING OF INDICATOR PARAMETERS IS INTENDED TO DETECT FACILITY
LEAKAGE INTO THE GROUND WATER. IF SUCH LEAKAGE IS DETECTED THE
GROUND-WATER QUALITY ASSESSMENT PROGRAM IS TO BE IMPLEMENTED TO
ESTABLISH THE MAGNITUDE OF THE PROBLEM. IF THE ASSESSMENTDEMONSTRATES
THE ABSENCE OF HAZARDOUS WASTE CONSTITUENTS IN THE GROUND WATER, THE
OWNER OR OPERATOR MAY REINSTATE INDICATOR PARAMETER MONITORING UNITL
SUSPECTED LEAKAGE INTO THE GROUND WATER IS AGAIN DETECTED. THIS
DETECTION COULD, OF COURSE, TRIGGER THE NEED FOR ANOTHER GROUND-WATER
QUALITY ASSESSMENT, AND SO ON, THROUGHOUT THE POSTCLOSURE CARE PERIOD AS
WELL. IF, ON THE OTHER HAND, THE FIRST DETERMINATION UNDER THE GROUND
WATER QUALITY ASSESSMENT PROGRAM DEMONSTRATES THAT HAZARDOUS WASTE
CONSTITUENTS HAVE INDEED ENTERED GROUND WATER, THE ASSESSMENTS MUST BE
REPEATED QUARTERLY, UNTIL FINAL CLOSURE OF THE FACILITY. SINCE
ADDITIONAL HAZARDOUS WASTES WILL BE RECEIVED AT THE FACILITY THORUGHOUT
THIS TIME, ADDITIONAL ASSESSMENTS ARE NECESSARY TO DETERMINE ANY FURTHER
IMPACT FROM THESE WASTES ON THE GROUND-WATER QUALITY.
IF THE FIRST DETERMINATION OF GROUND-WATER CONTAMINATION,
BY IMPLEMENTATION OF THE GROUND-WATER QUALITY ASSESSMENT PLAN,
OCCURS DURING THE POST-CLOSURE CARE PERIOD, HOWEVER, THE SOURCES
OF CONTAMINATION ARE EXPECTED TO BE RELATIVELY STABLE SUCH THAT
REPEATED ASSESMENTS WOULD ONLY CONFIRM THE INITIAL DETERMINATION
OF CONTAMINATION. FOR THIS REASON OLY ONE GROUND-WATER QUALITY
ASSESSMENTWHICH DEMONSTRATES CONTAMINATION IS REQUIRED DURING THE
POST-CLOSURE CARE PERIOD. BY A SIMILAR LINE OF REASONING, THOSE
FACILITIES WHICH FROM THEBEGINNING UTILIZE AN ALTERNATE
GROUND-WATER MONITORING SYSTEM EQUIVALENT TO A GROUNDWATER
QUALITY ASSESSMENT PROGRAM, ARE NOT REQUIRED TO MAKE REPEATED
ASSESSMENTS AFTER FINAL CLOSURE OF THE FACILITY.
THE MORE FREQUENT MONITORING (I.E., QUARTERLY) UNDER THE ASSESSMENT
PROGRAM IS REQUIRED TO ENABLE THE REGIONAL ADMINISTRATOR AND THE OWNER
OR OPERATOR TO BE FULLY AWARE OF THE EXTENT OF GROUND-WATER
CONTAMINATION. SUCH INFORMATION WILL BE USEFUL, FOR EXAMPLE, IN
PROVIDING WARNING TO DOWNGRADIENT GROUND-WATER USERS OF ANY POTENTIAL
DANGER, IF NECESSARY.
THE FINAL RULE ALSO DIFFERS FROM THE PROPOSED VERSION IN THE TEST FOR
STATISTICAL SIGNFICANCE. AS PROPOSED, ANALYSES OF GROUND-WATER QUALITY
WERE TO BE COMPARED TO THE BACKGROUND QUALITY ESTABLISHED FOR EACH
FACILITY, USING THE SINGLE-TAILED STUDENT'S T-TEST AT THE 95 PERCENT
CONFIDNCE LEVEL. COMMNTERS CLAIMD THAT THE STUDNET'S T-TEST AT THE 95
PERCENT CONFIDENCE LEVEL WAS TOO RESTRICTIVE. COMMNTERS STATED THAT THE
STUDENT'S T-STATISTIC IS INAPPROPRIATE BECAUSE IT IS DEPENDENT UPON A
NORMAL DISTRIBUTION, WHICH CANNOT BE ASSUMED FOR GROUND-WATER DATA
BECAUSE OF SEASONAL FLUCTUATIONS. ONE COMMENTER SUGGESTED ESTABLISHING
TOLERANCE LIMITS AS AN ALTERNATIVE TO SPECIFYING A STATISTICAL TEST OF
SIGNFICANCE.
AFTER CONSIDERING THESE COMMENTS, THE AGENCY REPROPOSED THE
STATISTICAL TEST ON SEPTEMBER 19, 1979 (44 FR 54323-54324) AND SPECIFIED
THE USE OF THE MANN-WHITNEY U-TEST AT THE 95 PERCENT CONFIDENCE LEVEL.
IN SPECIFYING THE MANN-WHITNEY U-TEST, WHICH IS A NON-PARAMETRIC TEST,
THE AGENCY SOUGHT TO OVERCOME THE MAJOR WEAKNESS OF THE STUDENT'S
T-TEST, NAMELY, ITS UNDERLYING ASSUMPTION OF "NORMALITY." COMMENTERS ON
THE REPROPOSAL GENERALLY PREFERRED THE STUDENT'S T-TEST OVER THE
MANN-WHITNEY U-TEST, FOR TWO REASONS. FIRST, THEY WERE MORE FAMILIAR
WITH THE STUDENT'S T-TEST. SECOND, SEVERAL COMMENTERS EXPLAINED
THATWHILE THERE IS AN UNDERLYING ASSUMPTION OF NORMALITY FOR THE
STUDENT'S T-TEST, IT IS TOLERANT OF CONSIDERABLE DEPARTURES FROM THAT
ASSUMPTION. THE AGENCY HAS THEREFORE AGAIN SPECIFIED THE STUDENT'S
T-TEST IN THESE FINAL REGULATIONS.
THE REQUIRED STATISTICAL COMPARISON IN THESE REGULATIONS, HOWVER,
DIFFERS FROM THAT PROPOSED IN SEVERAL WAYS AS A RESULT OF CONCERNS WHICH
COMMENTERS RAISED ON THE BRAODER TOPIC OF STATISTICALLY DIFFERING
GROUND-WATER QUALITY. COMMENTERS SUGGESTED THAT THERE WAS A HIGH
PROBABILITY OF STATISTICALLY SIGNIFICANT INCREASES RESULTING FROM
ANTICIPATED NATURAL FLUCTUATIONS IN GROUND-WATER QUALITY AND
FROMANALYTICAL ERROR (I.E., FALSE SIGNFICANT). THE AGENCY HAS
INCORPORATED SEVERAL CHANGES WHICH , WHEN COMBINED, SHOULD GREATLY
MINIMIZE THE POSSIBILITY OF "FALSE" SIGNIFICANCE. THESE INCLUDE
LIMITING TO FOUR THE NUMBER OF INDICATOR PARAMETERS TO BE COMPARD;
PERFORMING THE T-TEST AT THE 99 PERCENT LEVEL OF SIGNIFICANCE INSTEAD OF
THE PROPOSED 95 PERCENT LEVEL; AND INITIALLY RESPONDING TO DETECTED
STATISTICALLY SIGNIFICANT DIFFERENCE BY TAKING ADDITIONAL GROUND-WATER
CHECK SAMPLES TO CONFIRM THE SIGNIFICANT DIFFERENCE.
IN ADDITION, TO ASSURE THAT ACCURATE DATA IS USED BY THE OWNER
OR OPERATOR IN THE STATISTICAL COMPARISONS, THE AGENCY REQUIRES THAT
FOUR REPLICATE MEASUREMENTS BE MADE ON EACH OBTAINED GROUND-WATER
SAMPLE FOR EACH INDICATOR PARAMATER. FOUR REPLICATES PROVIDE 95
PERCENT CONFIDENCE THAT THE AVERAGE OF THE MEASURED VALUES
WILL BE WITHIN FIVE PRECENT OF THE ACTUAL VALUE IF GENERALLY
ACCEPTED ANALYTICAL PROCEDURES ARE FOLLOWED.
IN ITS INVESTIGATIONS OF STATISTICAL TEST PROCEDURES WHICH COULD BE
USEFUL IN INTERPRETING GROUND-WATER MONITORING DATE, THE AGENCY GAVE
CONSIDERATION TO STNDARD INDUSTRIAL QUALITY CONTROL CONCEPTS AND
PROCEDURES FOR DATA EVALUATION. THE AGENCY IS AWARE THAT THESE
PROCEDURES WERE DEVELOPED FOR RELATIVELY WELL CONTROLLED AND OPERATED
INDUSTRIAL PROCESSES. HOWEVER, THE CONCEPTUAL BASIS OF MONITORING
GROUND-WATER QUALITY INDICATORS IS SIMILAR IN THE SENSE THAT THE
VARIATION OF THE INDICATOR MEASUREMENTS UNDER TYPICAL CIRCUMSTANCES
SHOULD BE PREDICTABLE WITHIN LIMITS. IF NO LEAKAGE FROM A HAZARDOUS
WASTE FACILITY OR OTHER HYDROLOGIC CHANGE HAS OCCURED, THE GROUND-WATER
QUALITY INDICATOR LEVELS SHOULD REMAIN WITHIN SUCH LIMITS. EXCURSIONS
OUTSIDE THE LIMITS. EXCURSIONS OUTSIDE THE LIMITS WOULD INDICATE
THATCHANGES MAY HAVE OCCURRED THAT REQUIRE FURTHER INVESTIGATION.
QUALITY CONTROL METHODS MAY BE ADAPTABLE TO SUCH A SITUATION.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 044 OF 106
COSTLE D M ADMINISTRATOR
EPA
113408
REGULATION
QUALITY CONTROL MEHODS ALSO HAVE BEEN THE ADVANTAGE OF BEING
GENERALLY ACCEPTED AND UNDERSTOOD. THE BASIC APPRAOCH IN A GROUND-WATER
MONITORING PROGRAM WOULD BE TO USE DATA GATHERED DURING A BASELINE
PERIOD TO ESTABLISH LIMITS THAT WOULD ENCOMPASS A RANGE OF TYPICAL
VARIATION IN GROUND-WATER QUALITY INDICATOR PARAMETERS. EXCURSIONS
OUTSIDE THESE LIMITS IN SUBSEQUENT MONITORING SAMPLES WOULD INDICATE THE
NEED FOR FURTHER INVESTIGATION. WHILE THE AGENCY BELIEVES THAT THE USE
IN THESE REGULATIONS OF THE STUDENT'S T-TEST IS APPROPRIATE, COMMENT IS
REQUESTED ON THE USE OF A QUALITY CONTROL APPROACH IN INTERPRETING
GROUND-WATER MONITORING DATA. SUCH COMMENTS SHOULD IDENTIFY SPECIFIC
PROCEDURES AND CONCEPTS WHICH APPEAR AMENABLE TO THIS PURPOSE.
5. RECORDKEEPING AND REPORTING. THE PROPOSED REGULATIONS REQUIRED
MAKING QUARTERLY REPORTS OF GROUND-WATER MONITORING INFORMATION AND
KEEPING GROUND-WATER QUALITY DATA AND ANALYTICAL PROCEDURE RECORDS FOR A
PERIOD OF THREE YEARS. THE FEW COMMENTERS THAT ADDRESSEED THIS
PROVISION MADE TWO POINTS. FIRST , THEY SUGGESTED THAT QUARTERLY
REPORTING WAS UNNECESSARY. SECOND, ONE COMMENTER SUGGESTED THAT THE
OWNER OR OPERATOR SEND COPIES OF ANY REPORTS TO STATE AND LOCAL
AUTHORITIES.
THE AGENCY HAS DECIDED THAT ANNUAL REPORTING OF THE DATE ON THE
INDICATOR PARAMETERS SHOULD PROVIDE SUFFICIENT NOTICE ON GENERAL
COMPLIANCE WITH THEREGULATIONS. THE AGENCY CAN, OF COURSE, EXAMINE THE
DATA HELD BY THE OWNER OR OPERATOR TO COMPLY WITH THESE REGULATIONS AT
ANY TIME. IN THEFIRST YEAR OF MONITORING HOWEVER, IT IS NECESSARY TO
HAVE MORE FREQUENT MONITORING AND REPORTING TO IDENTIFY THOSE AQUIFERS
THAT ARE IN GREATEST JEOPARDY. SUCH INFORMATION WILL BE USED TO SET
PRIORITIES FOR CONSIDERATION OF PERMITS. IN KEEPING WITH THAT GOAL, THE
OWNER OR OPERATOR MUST INDICATE IN HIS QUARTERLY REPORT DURING THE FIRST
YEAR OF MONITORING WHICH PARAMATERS EXCEED THE CONTAMINANT LIMITS
SPECIFIED IN APPENDIX III.
THESE REGULATIONS REQUIRE THE OWNER OR OPERATOR TO RETAIN HIS
GORUND-WATER DATA FOR THE ACTIVE LIFE OF THE SITE, AND FOR THE DURATION
OF THE POST-CLOSURE CARE PERIOD FOR DISPOSAL FACILITIES, INSTEAD OF THE
THREE-YEAR PERIOD SPECIFIED IN THE PROPOSED REGULATIONS. THE AGENCY
BELIEVES THATTHE ACTUAL MONITORING DATA (I.E., ALL REPLICATE
MEASUREMENTS O- ALL SAMPLES) MAY PROVIDE USEFUL INFORMATION IN
DETERMINING THE TYPA DNE EXTENT OF GROUND-WATER CONTAMINATION. SINCE
GROUND-WATER CHANGES MAY OCCUR SLOWLY, IT WILL BE USEFUL TO HAVE A
HISTORY OF THE FACILITY THATIS LONGER THAN THREE YEARS. BOTH THE OWNER
OR OPERATOR AND THE PERMITTING AUTHORITY SHOULD HAVEACCESS TO SUCH
INFORMATION WHEN NEEDED.
THE REGULATIONS DO NOT REQUIRE THE OWNER OPERATOR TO SEND THE
GROUND-WATER REPORT TO STATE OR LOCAL AUTHORITIES. THIS STEP IS
UNNECESSARY. THOS WTATES AND LOCAL AUTHORITIES THAT ARE INTERESTED IN
EXAMINING THE REPOTS MAY OBTAIN COPIES FROM EPA OR THE AUTHORIZED STATE
AGENCIES RESONSIBLE FOR RECEIVING SUCH INFORMATION.
SLIGHTLY DIFFERENT REPORTING REQUIREMENTS APPLY DEPENDING ON WHETHER
THE OWNER OR OPERATOR IS FOLLOWING THE INDICATOR PROGRAM OR THE
GROUND-WATER QUALITY ASSESSMENT PROGRAM AT THE FACILITY.
THE PURPOSE OF THEFINAL PART 265 CLOSURE AND POST-CLOSURE
STANDARDS IS TO ENSURE THAT ALL HAZARDOUS WASTE MANAGEMENT
FACILITIES ARE CLOSED IN A MANNER THAT (1) MINIMIZES THE NEED FOR
POST-CLOSURE MAINTENANCE, AND (2) CONTROLS, MINIMIZES, OR
ELIMINATES, TO THE EXTENT NECESSARY TO PROTECT HUMAN HEALTH AND
THE ENVIRONMENT, POST-CLOSURE ESCAPE OF WASTE, LEACHATE, CONTAMINATE
RAINFALL, OR WASTE DECOMPOSITION PRODUCTS TO GROUND OR SURFACE
WATERS, AND THE ATMOSPHERE. THERE ARE TWO TYPES OF CLOSURE
AND POST-CLSOURE REQUIREMENTS IN THISE FINAL RULES: (1) GENERAL
REQUIREMENTS, WHICH ARE CONTAINED IN SUBPART G; AND (2) SPECIFIC
TECHNICAL REQUIREMENTS, WHICH AREINCLUDED IN THE FACILITY-SPECIFIC
REGULATIONS, FOR LANDFILLS; LAND TREATMENT FACILITIES, SURFACE
IMPOUNDMENTS; INCINERATORS, TANKS; AND THERMAL, PHYSICAL, CHEMICAL,
AND BIOLOGICAL TREATMENT F-CILITIES.
THIS SECTION OF THE PREAMBLE FOCUSES ON THE SUBPART G GENERAL
CLOSUREAND POST-CLOSURE REQUIREMENTS. THE TECHNICAL STANDARDS ESTABLISH
IN MORE DETAIL SPECIFIC REQUIREMENTS AND ADDITIONAL OBJECTIVES. THEY
AREINTENDED TO GIVE FLEXIBILITY TO FACILITY OWNERS OR OPERATORS, AND TO
REDUCE THE POSSIBILITY FOR OVER RESPONSE TO THESE REQUIREMENTS. THE
TECHNICAL STANDARDS AREDESCRIBED IN LATER SECTIONS OF THIS PREAMBLE.
THE FINAL INTERIM STATUS REGULATIONS SPECIFY WHAT FACILITY OWNERS OR
OPERATORS MUST DO AFTER WASTES ARE NO LONGER RECEIVED FOR TREATMENT,
STORAGE, OR DISPOSAL. (THIS WAS CALLED "CLOSEOUT" IN THEPROPOSED
REGULATION BUT THE TERM HAS BEEN DROPPED BECAUSE IT WAS FREQUENTLY
CONFUSED WITH "CLOSURE".)
CLOSURE IS THE PERIOD AFTER WASTES ARE NO LONGER ACCEPTED, DURING
WHICH THE OWNERS OR OPERATORS COMPLETE TREATMENT, STORAGE, AND DISPOSAL
OPERATIONS, APPLY FINAL COVER TO OR CAP LANDFILLS AND DISPOSE OF OR
DECONTAMINATE EQUIPMENT. POST-CLOSURE IS THE PERIOD AFTER CLOSURE
DURING WHICH OWNERS OR OPERATORS OF DISPOSAL FACILITIES MUST CONDUCT
CERTAIN MONITORING AND MAINTENANCE ACTIVITIES. EPA BELIEVES THAT IF THE
DISPOSAL FACILITY HAS BEEN PROPERLY LOCATED, DESIGNED, OPERATED, AND
CLOSED, AND NO CONTAMINANT LEAKAGE PROBLEMS HAVE OCCURRED DURING THE
OPERATING LIFE OF THE FACILITY OR DURING THE POST-CLOSURE CARE AND
MAINTENANCE PERIOD, THEN THE PROBABILITY OF SIGNIFICANT GROUND-WATER
CONTAMINATION IS VERY SMALL.
1. PERIOD OF POST-CLOSURE CARE. THE PROPOSED RULES REQUIRED THAT
POST-CLOSURE CARE BE CONDUCTED FOR 20 YEARS AT DISPOSAL FACILITIES.
THEAGENCY RECEIVED NUMEROUS COMMENTS ON THIS REQUIREMENT. ABOUT HALF OF
THESE COMENTS FAVORED A PERIOD LESS THAN THE 20 YEARS PROPOSED BUT THE
OTHER HALF FAVORED A LONGER PERIOD. THOSE SUPPORTING A LONGER PERIOD
ARGUED THAT THE HAZARD POSED BY MANY WASTES EXISTS FOR AN EXTREMELY LONG
TIME, AND THAT MONITORING SHOULD BE CARRIED OUT PERPETUALLY, OR FOR AS
LONG AS THE WASTES ARE HAZARDOUS. THOSE FAVORING A SHORTER TIME ARGUED
THAT ONLY A FEW WASTES REMAIN HAZARDOUS FOR MORE THAN A FEW YEARS.
THESE COMMENTERS FELT THAT THERE WAS TOO MUCH UNCERTAINTY AND POTENTIAL
ECONOMIC BURDEN WITH THE PROPOSED STANDARD, BECAUSE IT CARRIED A
POTENTIAL FOR UNNECESSARY MONITORING.
AS A RESULT OF THE EXTENSIVE COMMENT, THE AGENCY HAS
CONSIDERED THE POST-CLOSURE CARE ISSUE, AND HAS DECIDED TO
EXTEND THE POST-CLOSURE PERIOD FROM 20 TO 30 YEARS. EPA BELIVES
THAT ELIMINATING LEACHATE MONIROTING REQUIREMENTS MAKE IT
NECESSARY TO MONITOR GROUND WATER FOR A LONGER PERIOD OF TIME,
AND THAT FURTHER ANALYSIS OF FINANCIAL REQUIREMENTS, AS WELL AS
CHANGES IN THESE REGULATIONS,MAKE IT PRACTICAL TO DO SO.
PUBLIC COMMENT PERSUADED EPA (SEE BACKGROUND DOCUMENT ON
GROUND-WATER MONITORING) THAT EXISTING LEACHATE MONITORING
TECHNIQUES ARE IMPRACTICAL, EXCEPT AT LAND TREATMENT FACILITIES.
THUS, EPA HAS DELETED THE LEACHATE MONIROTING REQUIREMENTS FOR
LANDFILLS AND SURFACE IMPOUNDMENTS. EPA HAD BELIEVED THAT
LEACHATE MONITORING SYSTEMS WOULD ACT AS EARLY WARNING SYSTEMS.
SINCE IT WILL TAKE LONGER FOR CONTAMINATION MIGRATION TO REACH
GROUND-WATER MONITORING POINTS THAN IT WOULD HAVE TAKEN TO REACH
LEACHATE DETECTION MONITORING POINTS, IT IS NECESSARY TO MONITOR
FOR A LONGER PERIOD.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 045 OF 106
COSTLE D M ADMINISTRATOR
EPA
113409
REGULATION
EPA IS NOW CONVINCED THAT IT IS REASONABLE TO MONITOR AND
MAINTAIN CLOSED DISPOSAL FACILITIES FOR 30 YEARS. BECAUSE
EPA NO LONGER RQUIRES LEACHATE AND AIR MONITORING, OWNERS
OR OPERATORS NEED NOT PROVIDE THE MONEY FOR THESE ACTIVITIES.
FURTHERMORE, PROPOSED CHANGES IN THE FINANCIAL REGULATIOSN WILL
MAKE ALL FINANCIAL REQUIREMENTS LESS COSTLY. OWNERS OR OPERATORS
WILL BE ABLE TO SATISFY CLOSURE AND POST-CLOSURE RESPONSIBILITIES
THROUGH A NUMBER OF FINANCIAL MECHANISMS, MANY OF WHICH ARE
SUBSTANTIALLY LESS EXPENSIVE THAN TRUST FUNDS. (FOR A COMPLETE
DESCRIPTION OF THE PROPOSED FINANCIAL MECHANISMS, SEE THE
PROPOSAL SECTION OF THIS FEDERAL REGISTER AND THE BACKGROUND
DOCUMENT ON FINANCIAL RESPONSIBILITY.) ALSO, IN THESE PROPOSED
FINANCIAL REGULATIONS FOR INTERIM STATUS, OWNERS OR OPERATORS
MAY BUILD CLOSURE TRUST FUNDS DURING THE EXPECTED SITE LIFE,
RATHER THAN BY ADVANCING ALL THE MONEY INITIALLY. THIS ALTERNATIVE
WILL MAKE TRUST FUNDS LESS EXPENSIVE. AS A RESULT, EPA IS
CONVINCED THAT OWNERS OR OPERATORS CAN NOW MAINTAIN AND MONITOR
DISPOSAL SITES FOR 30 YEARS AFTER CLOSURE.
HOWEVER, BECAUSE OF THE UNCERTAINTY CAUSED BY THE LACK OF EXTENSIVE
EXPERIENCE WITH PROPERLY DESIGNED DISPOSAL OPERATIONS, THE AGENCY DOES
NOT BELIEVE THAT AN UNALTERABLE NATIONAL RULE IS NECESSARILY THE BEST
WAY TO ENSURE HUMAN HEALTH AND ENVIRONMENTAL PROTECTION. THE PERMITTING
PROCESS WILL PROVIDE FOR CASE-BY-CASE REVIEW OF THE PERIOD FOR
POST-CLOSURE CARE AND THE INTERIM STATUS STANDARDS PERMIT EPA TO SHORTEN
OR LENGTHEN THE 30-YEAR POST-CLOSURE PERIOD AS APPROPRIATE ON A
CASE-BY-CASE REVIEWOF THE PERIOD FOR POST-CLOSURE CARE AND THE INTERIM
STATUS STANDARDS PERMIT EPA TO SHORTEN OR LENGTHEN TO 30-YEAR
POST-CLOSURE PERIOD AS APPROPRIATE ON A CASE-BY-CASE BASIS. THUS, FOR
EXAMPLE, IF AN OWNER OR OPERATOR CAN DEMONSTRATE TO REGIONAL
ADMINISTRATOR THAT THERE IS NO NEED TO MONITOR AND MAINTAIN HIS CLOSED
DISPOSAL FACILITY FOR THE ENTIRE 30-YEAR PERIOD, THE PERIOD COULD BE
SHORTENED, REPRESENTATIVES OF THE PUBLIC, ON THE OTHER HAND, COULD ALSO
PETITION TO HAVE THE MONITORING PERIOD EXTENDED FOR CAUSE.
EPA AGREES WITH THOSE COMMENTERS WHO POINTED OUT THAT RISKS FROM SOME
WASTES PERSIST FOR LONG PERIODS OF TIME. FOR ORGANIC WASTES DISPOSED OF
IN AN ANAEROBIC ENVIRONMENT, THE DECOMPOSITION TO NON-TOXIC PRODUCTS IS
VERY SLOW. SIMILARLY, HEAVY METALS REMAIN TOXIC FOREVER, AND MAY BE
MOBILIZED UNLESS CAREFULLY MANAGED. THIS MAY ARGUE FOR PERPETUAL
MONITORING OF LAND DISPOSAL FACILITIES. HOWEVER, THE AGENCY HAS FOUND
THAT TI WOULD BE NEARLY IMPOSSIBLE FOR SMALL SINGLE FACILITIES TO
FINANCE SUCH ACTIVITIES IN PERPETUITY, AFTER REVENUES CEASE. THUS, SOME
FORM OF NATIONAL INSURANCE IS NECESSARY TO ENSURE PERPETUAL MONITORING
OF THESE FACILITIES, BECUASE MANY OF THEM WOULD SURELY DEFAULT IF
REQUIRD TO CONDUCT PERPETUAL MONITORING, EPA IS CONSIDERING ASKING
CONGRESS TO ENACT LEGISLATION TO DEVELOP SUCH A ANATIONAL INSURANCE
PROGRAM. IN THEINTERIMK THE AGENCY HAS REVISED, THESE INTERIM STATUS
REGULATIONS TO ALLOW THE REGIONAL ADMINISTRATOR TO EXTEND SOME OR ALL OF
THE POST-CLOSURE CARE REQUIREMENTS FOR CAUSE, E.G., BECUASE
CONTAMINATION ID DETECTED OR FEARED IMMINENT.
2. NOTICE IN DEED TO PROPERTY. A NUMBER OF COMMENTERS QUESTIONED
THE LEGALITY OF THE PROPOSED STANDARD WHICH REQUIRD THE OWNER OR
OPERATOR TO RECORD, IN THE DEED OF THE PROPERTY, A STIPULATION
RESTRICTING FUTURE USE OF THE PROPERTY. IN RESPONSE TO THESE COMMENTS,
THE AGENCY HAS REWORDED THE REQUIREMENT, SO THAT THE OWNER OR OPERATOR
OF A FACILITY IN WHICH HAZARDOUS WASTE WILL REMAIN AFTER CLOSURE MUST
SUBMIT EVIDENCE THAT A NOTATION HAS BEEN PLACED ON THE DEED TO THE
PROPERTY, OR ON AN APPROPRIATE ALTERNATE DOCUMENT. THE NOTATION MUST
WARN THAT FEDERAL LAW LIMITS POST-CLOSURE USE OF THE PROPERTY BY ANYONE
IN A MANNER THAT WOULD DISTRUB THE INTEGRITY OF THE FINAL COVER, THE
LINER(S) OR THE MONITORING SYSTEMS OF THE FACILITY. DURING INTERIM
STATUS, THE OWNER MUST PLACE THE NOTATION ON THE DEED OR ALTERNATIVE
DOCUMENT, BUT NEED NOT SUBMIT EVIDENCE TO EPA OF HAVING DONE SO UNLESS
SPECIFICALLY REQUESTED BY THE AGENCY.
3. AMENDMENT AND SUBMISSION OF PLANS. SEVERAL COMMENTERS SUGGESTED
THAT, DURING THE OPERATION OF THE FACILITY BEFORE CLOSURE, OWNERS OR
OPERATORS SHOULD BE ABLE TO AMEND THE CLOSURE PLAN AND THE CLOSURE COST
ESTIMATES THAT THEY SUBMITTED AS A REQUIREMENT FOR THE FACILITY PERMIT.
THEY CLAIMED THAT THIS WOULD HELP ENSURE THATTHE PLAN IS CURRENT AND
THAT THE CLOSURE FUNDS ARE SUFFICIENT, AND IT WOULD ALLOW FOR OPERATING
CHANGES WHICH MIGHT AFFECT CLOSURE. THE AGENCY AGREES,AND HAS MODIFIED
THE REGULATIONS ACCORDINGLY. DURING INTERIM STATUS, MODIFICATIONS TO
THE CLOSURE PLAN MUST BE MADE WHERE APPROPRIATE, BUT NEED NOT BE
APPROVED BY EPA SINCE CLOSURE PLANS MUST BE SUBMITTED TO EPA ONLY IN THE
EVENT THAT THE SITE CLOSES. THE OWNER OR OPERATOR MUST SUBMIT HIS
CLOSURE PLAN TO THE REGIONAL ADMINISTRATOR AT LEAST 180 DAYS BEFORE THE
DATE HE EXPECTS TO BEGIN CLOSURE. ALL OF THE ABOVE CONSIDERATIONS APPLY
TO POST-CLOSURE PLANS FOR DISPOSAL FACILITIES AS WELL. BOTH CLOSURE AND
POST-CLOSURE PLANS ARE DEEMED REQUIREMENTS OF SUBTITLE C, AND THE PLANS
THEMSELVES ARE ENFORCEABLE BY EPA.
4. TIME ALLOWED FOR CLOSURE. SEVERAL COMMENTERS THOUGHT THE
PROPOSED 90-DAY LIMIT FOR COMPLETING DISPOSAL OR FOR REMOVING WASTE FROM
FACILITIES AFTER WASTES ARE NOT LONGER RECEIVED, WAS TOO STRINGENT AND
INFLEXIBLE. THE COMMENTERS ARGUED THAT, AT CERTAIN TIMES OF THE YEAR,
WEATHER WOULD PREVENT COMPLETING WASTE DISPOSAL OR REMOVAL AT A
FACILITY, AND THAT 90 DAYS IS NOT ENOUGHT TIME TO COMPLETE THESE
ACTIVITIES AT MOST FACILITIES. EPA DISAGREES. CLOSURE PLANS, WHICH ARE
DEVELOPED FAR IN ADVANCE OF ACTUAL CLOSURE, CAN CERTAINLY BE DEVELOPED
TO ENSURE THAT WASTES ARE DISPOSED OR OF REMOVED WITHIN 90 DAYS OF
COMMENCING CLOSURE. THIS SHOULD BE THE FIRST ACTIVITY CONDUCTED WHEN A
FACILITY COMMENCES CLOSURE, AND OWNERS OR OPERATORS SHOULD ENSURE THAT
WASTE INVENTORIES ARE REDUCED TOMANAGEABLE LEVELS BEFORE COMMENCING
CLOSURE IN ORDER TO COMPLY WITH THE 90-DAY DEADLINE.
THEPROPOSED REGULATIONS REQUIRED THAT CLOSURE BE COMPELTED WITHIN
THREE YEARS AFTER THE FACILITY STOPPED ACCEPTING WASTES. A NUMBER OF
COMMENTERS SUGGESTED THAT THE TIME LIMIT FOR CLOSURE ACTIVITIES WAS TOO
LONG IN MOST CASES, AND SHOULD BE MADE MORE FLEXIBLE. THE AGENCY
AGREES, AND HAS REWORDED THE REQUIREMENT TO INDICATE THAT CLOSURE MUST
BE COMPLETEDWTH SIX MONTHS. A VARIANCE PROCEDURE WILL ALLOW A LONGER
PERIOD, WHERE IT CAN BE JUSTIFIED, ALTHOUGH IN NO CASE MAY CLOSURE TAKE
MORE THAN THREE YEARS.
5. POST-CLOSURE PERMITS. EPA IS CONSIDERING A PROCEDURAL MECHANISM
SOMEWHAT DIFFERENT FROM THOSE CONTAINED IN PRIOR PROPOSALS FRO DEALING
WITH THE PROBLEMS INVOLVED IN MONITORING FACILITIES AFTER CLOSURE AND
TAKING CORRECTIVE ACTION WHERE NECESSARY. AS STATED EARLIER IN THIS
PREAMBLE. EPA DOES NOT BELIEVE THAT SUBTITLE C OR RCRA WAS INTENDED TO
COVER DISPOSAL SITES FOR HAZARDOUS WASTE WHICH WERE CLOSED BEFORE THE
EFFECTIVE DATE OF THESE REGULATIONS. HOWEVER, A DIFFERENT SITUATION IS
PRESENTED FOR THE POST-CLOSURE CARE OF FACILITES WHICH AT ONE TIME HAD
RECEIVED A RCRA PERMIT OR INTERIM STATUS AND OPERATED UNDERIT. THERE
CAN BE LITTLE QUESTION THAT THE STATUTE INTENDED EPA TO REQUIRE MEASURES
TO BE TAKEN , FOR AS LONG AS NECESSARY, TO ENSURE THAT THESE FACILITIES
AND THE WASTE LOCTED THERE DO NOT POSE A THREAT TO HUMAN HEALTH OR THE
ENVIRONMENT. ONE OF THE MAJOR PURPOSES OF THE CLOSURE AND FINANCIAL
RESPONSIBILITY PROVISIONS OF THE PART 264 AND PART 265 REGULATIONS IS TO
ENSURE THAT SITES REMAIN SAFE EVEN AFTER THEY CEASE ACTIVE OPERATION.
UNDER THE STRUCTURE OF SUBTITLE C, THE ONLY CONSISTENT WAY TO MAKE
SURE THAT HTE NECESSARY CORRECTIVE MEASURES CAN BE TAKEN AT CLOSED SITES
IS TO MAKE THOSE SITES SUBJECT TO REGULATIONS UNDER SECTION 3004. THAT
IS THE ONLY SECTION OF SUBTITLE C THAT AUTHORIZES SUBSTANTIVE REGULATORY
STANDARDS OF THE TYPE IN QUESTION.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 046 OF 106
COSTLE D M ADMINISTRATOR
EPA
113410
REGULATION
HOWEVER, SECTION 3004 APPLIES ONLY TO "OWNERS AND OPERATORS OF
FACILITIES FOR THE TREATMENT, STORAGE, OR DISPOSAL OF HAZARDOUS WASTE,
"AND CAN THEREFORE BE APPLIED TO CLOSED SITES ONLY IF THE OWNERS OR
OPERATORS OF THOSE SITES ARE SAID TO COME WITHIN THAT DEFINITION. AS
NOTED ABOVE, POLICY CONSIDERATIONS SUPPORT READING THE STATUTE IN THIS
MANNER. IN ADDITION, THE SAME CONCLUSION IS HARD TO AVOID SIMPLY AS A
MATTER OF TEXTUAL INTERPRETATION, SINCE LAND IN WHICH HAZARDOUS WASTES
BURIED IS CERTAINLY EITHER "STORING" OR "DISPOSING" OF THOSE WASTES
WITHIN THE MEANING OF THE SPECIFIC DEFINITIONS OF THOSE TERMS GIVEN IN
RCRA SECTION 1004.
OF OWNERS OR OPERATORS OF INACTIVE SITES WHICH ONCE WERE COVERED BY
RCRA PERMIT ARE STILL "STORING" OR "DISPOSING" OF THOSE WASTES, IT
FOLLOWS THAT THEY MUST GET A PERMIT UNDER SECTION3005. ONCE AGAIN, THAT
CONCLUSION MAKES SENSE AS A MATTER OF POLICY AS WELL AS A STRICT MATTER
OF TEXTUAL INTERPRETATION.
FOR EXAMPLE, THE PROVISIONS OF THE STATUTE FOR EPA INSPECTION AND
MONITORING ARE BEST ENFORCED AS PART OF A PERMIT. THOUGH EPA BELIEV
THAT THE TERMS OF ANY POST-CLOSURE RCRA PERMIT SHOUDL BE STRICTLY
LIMITED AND REQUIRE AN ABSOLUTE MINIMUM OR PAPERWORK, THERE ARE
STRONG POLICY REASONS, AS WELL AS LEGAL REASONS, WHY A PERMIT OF
THIS TYPE MIGHT BE ESSENTIAL TO THE OVERALL OPERATION OF THE
PROGRAM. FOR EXAMPLE, IT MIGHT BE VERY DIFFICULT FOR EPA TO GAIN
ACCESS TO LAND TO CLEAN UP A LEAKING SITE WITHOUT THE AID OF PERMIT
TERMS AUTHORIZING THAT ACCESS.
ACCORDINGLY, IN THE NEAR FUTURE EPA PLANS TO DEVELOP PROPOSED
REGULATIONS CALLING FOR THE OWNERS OR OPERATORS OF CLOSED SITES THAT
ONCE WERE PERMITTED OR OPERATED UNDER INTERIM STATUS TO APPLY FOR AND
RECEIVE A POST-CLOSURE PERMIT FROM EPA. EPA ANTICIPATES THAT THE
CONDITIONS OF THIS PERMIT WILL RELATE ALMOST EXCLUSIVELY TO GENERAL
PROCEDURES CONCERNING ACCESS, MONITORING, AND FINANCIAL RESONSIBILITY,
AND THAT CUMBERSOME PERMIT PROCEDURES WILL NOT BE NECESSARY. EPA
ANTICIPATES THAT THESE WILL BE LIFETIME PERMITS.
IT MAY BE THAT THIS APPROACH MAY REDUCE PAPERWORK IN THE END, FOR
EXAMPLE, BY MAKING POSSIBLE THE MODIFICATION OR ELIMINATION OF THE
PRESENT REQUIREMENT TO RECORD CONDITIONS ON THE FACILITY TITLE IN STATE
OR LOCAL DEED RECORDING SYSTEMS. EPA WILL BE EXAMINING THESE QUESTIONS
FURTHER IN THE COURSE OF DEVELOPING ITS PROPOSAL.
G. SUPBART H -- FINANCIAL REQUIREMENTS
THE PROPOSED SECTION 250.43-9 FINANCIAL STANDARDS CONTAINED THREE
TYPES OF FINANCIAL ASSURANCE REQUIREMENTS (1) THOSE ASSURING FUNDS TO
CONDUCT CLOSURE ACTIVITIES IN ACCORDANCE WITH CLOSURE ACTIVITIES IN
ACCORDANCE WITH THE CLOSURE PLAN, (2) THOS ASSURING FUNDS TO CONDUCT
POST-CLOSURE ACTIVITIES AT DISPOSAL FACILITIES IN ACCORDANCE WITH
THEPOST-CLOSURE PLAN AND (3) THOSE ASSURING FUNDS TO COVER THIRD PARTY
DAMAGE CASES.
1. LIABLITY. THE FINANCIAL RESPONSIBILTY REQUIREMENTS COVERING
THIRD PARTY DAMAGES DURING THEPOST-CLOSURE CARE PERIOD ARENOT COVERED IN
THE PART 265 INTERIM STATUS STANDARDS. AT STATED IN THE PREAMBLE TO THE
PROPOSED REGULATION, THE AGENCY HAS BEEN UNABLE TO IDENTIFY A VIABLE
MECHANISM TO PROVIDE FOR LIABILITY COVERAGE DURING THE POST-CLOSURE CARE
PERIOD, AND IS SUPPORTING AN INITIATIVE IN CONGRESS WHICH WOULD SET UP A
NATIONAL FUND TO PROVIDE FOR SUCH COVERAGE.
DURING THELIFE OF THE SITE, MOST COMPANIES ARE LIKELY TO SEEK PRIVATE
INSURANCE TO COVER LIABILITY CLAIMS. THORUGH DISCUSSIONS WITH THE
INSURANCE INDUSTRY, THE AGENCY HAS DETERMINED THAT NON-SUDDEN POLLUTION
COVERAGE OFTEN WOULD BE MADE EFFECTIVE ONLY WHEN A FACILITY RECEIVED A
PERMIT. BECAUSE FACILITIES DO NOT HAVE PERMITS DURING THE INTERIM
STATUS PERIOD, THEY MIGHT NOT BE ABLE TO GET INSURANCE FOR NON-SUDDEN
OCCURENCES. THUS, SITE-LIFE LIABILITY FOR NON-SUDDEN OCCURRENCES IS
NOTREQUIREED DURING THE INTERIM STATUS PERIOD. HOWEVER, THE AGENCY IS
PROPOSING A RULE REQUIRING SITE-LIFE LIABLITY FOR SUDDEN AND ACCIDNETAL
OCCURANCES DURING THEINTERIM STATUS PERIOD. THE AGENCY INTENDS TO ADD
THIS RULE TO THE INTERIM STATUS STANDARDS, AFTER PUBLIC COMMENT, LATER
THIS YEAR.
2. FINANCIAL ASSURANCE. THE PROPOSED FINANCIAL STANDARDS ASSURING
FUNDS FOR CLOSURE AND POST-CLOSURE CARE REQUIRED THATOWNERS OR OPERATORS
FIRST ESTIMATE THE COST OF CLOSURE, AND POST-CLOSURE CARE WHERE
APPLICABLE, BASED ON THECLOSURE AND POST-CLOSURE CARE PLANS. THEN A
TRUST FUND WAS TO ESTABLISHED TO ASSURE THAT THE NECESSARY FUNDS WOLD BE
AVAILABLE. EPA RECEIVED NUMEROUS COMMENTS ASKING THAT THE TRUST FUND
REQUIREMENT BE RESTRUCTURED AND THATFINANCIAL INSTRUMENTS OTHER THAN A
TRUST FUND BE ALLOWED. AFTER CONSIDERATION RE-ANALYSIS, THE AGENY IS
CONVINCED THATOTHER FINANCIAL MECHANISMS CAN PROVIDE FINANCIAL
INSTRUMENTS OTHER THAN A TRUST FUND BE ALLOWED. AFTER CONSIDERABLE
RE-ANALYSIS, THE AGENCY IS CONVINCED THATOTHER FINANCIAL MECHANISMS CAN
PROVIDE PROTECTION EQUIVALENT TO TRUSTS, AND THAT THE TRUST MECHANISM
REQUIREMENT COULD BENEFIT FROM MAJOR RESTRUCTURING. BECAUSE OF THE
COMPLEXITY OF THE SUJBECT MATTER AND THE MAGNITUDE OF THE CHANGES, THE
AGENCY BELIEVES THAT THE REGULATED COMMUNITY AND THE GENERAL PUBLIC
SHOULD HAVE AN OPPORTUNITY TO COMMENT ON THE REVISED REGULATIONS BEFORE
THEY ARE PRUMULGATED. AS A RESULT, THE AGENCY IS REPROPOSING THE
SPECIFIC REQUIREMENTS OFR THE VARIOUS FINANCIAL INSTRUMENTS IT INTENDS
TO ALLOW.
3. COST ESTIMATES. THE AGENCY IS PROMULGATING IN PHASW THE
REQUIREMENT THATOWNERS OR OPERATORS DEVELOP COST ESTIMATES FOR CLOSURE,
AND POST-CLOSURE ACTIVITIES WHERE APPLICABLE. SEVERAL COMMENTERS
SUGGESTED THAT THE AGENCY ALLOW FOR PARTIAL CLOSURE IN THE COST ESTIMATE
REQUIREMENTS. THIS HAD ALWAYS BEEN THE AGENCY'S INTENT. THE REPROPOSED
RULES BETTER REFLECT THIS INTENT BY REQUIRING THAT FUNDS BE SET ASIDE
EQUAL TO THE HIGHEST COST OF CLOSING THE FACILITY, EITHER AT ANY GIVEN
POINT LEADING UP TO CLOSURE, OR AT THE POINT OF FINAL CLOSURE. THUS,
FACILITIES WHICH CLOSE AS THEY GO (PARTIALLY CLOSE) NEED OBTAIN ONLY A
FRACTION OF THE FINANCIAL ASSURANCE THATWILL BE REQUIRED BY THOSE
CLOSING AT THE END OF SITE OPEARATIONS.
A FEW COMMENTERS SUGGESTED THAT THE CLOSURE AND POST-CLOSURE COST
ESTIMATES BE REVIEWED PERIODICALLY TO ENSURE CONTINUED ACCURACY. EPA
AGREES THAT CHANGESIN FACILITY DESIGN AND OPERATION, AND THE
UNCERTAINTIES INHERENT IN INFLATION AND INTEREST RATES, MAKE SUCH A
REVIEW HIGHLY DESIRABLE. THUS, THE FINAL RULES REQUIRE THAT THE OWNER
OR OPERATOR PREPARE A NEW CLOSURE COST ESTIMATE WHENEVER THE CLOSURE
PLAN IS MODIFIED, AND, FOR DISPOSAL FACILITIES, A NEW POST-CLOSURECOST
ESTIMATE WHENEVER THE POST-CLOSURE PLAN IS MODIFIED, IN ADDITION, THE
FINAL RULES REQUIE THAT THESE ESTIMATES BE INDEXED TO INFLATION ON AN
ANNUAL BASIS USING THE U.S. DEPARTMENT OF COMMERCE GROSS NATIONAL
PRODUCT IMPLICIT PRICE DEFLATOR.
4. PUBLICLY OWNED FACILITIES. A FEW COMMENTERS SUGGESTED THAT
PUBLICLY-OWNED FACILITIES SHOULD BE EXAMPLED FROM THE FINANCIAL
REQUIREMENTS, BECAUSE GOVENMENT INSTITUTIONS ARE PERMANENT AND STABLE,
AND HAVE AS THEIR REASON FOR BEING THE HEALTH AND WELFARE OF THEIR
PEOPLE. THEREFORE, ACCORDING TO THE COMMENTERS, PUBLICLY-OWNED
FACILITIES WOULD BE MORE LIKELY AND MORE ABLE FINANCIALLY TO CARRY OUT
THEIR CLOSURE AND POST-CLOUSRE REPONSIBILITIES.
THE AGENCY AGREES THAT STATE AND FEDERALLY-OWNED FACILITIES WILL
ALWAYS HAVE ADEQUATE RESOURCES TO CONDUCT CLOSURE AND POST-CLOSURE CARE
ACTIVITIES PROPERLY. THEREFORE, AN EXEMPTION FOR THESE FACILITIES HAS
BEEN INCORPORATE IN A NEW "APPLICABILITY" SECTION. (THE OTHER
PROVISIONS OF THE SECTION MAKE IT CLEAR THAT THE CLOSURE REQUIREMENTS
APPLY TO ALL OTHER FACILITIES, AND THAT THE POST-CLOSURE REQUIREMENTS
APPLY ONLY TO DISPOSAL FACILITIES.)
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 047 OF 106
COSTLE D M ADMINISTRATOR
EPA
113411
REGULATION
THE FINANCIAL STRENGTH OF LOCAL ENTITIES (CITIES AND COUNTIES), ON
THE OTHER HAND, IS NOT AS CERTAIN. SOME LOCAL GOVERNMENTS DO BECOME
INSOLVENT, AND IF SMALL ENOUGH, MIGHT NOT BE IN A FINANCIAL POSITION TO
FULFILL THEIR CLOSURE AND POST-CLOSURE RESPONSIBILITIES. FURTHER, SOME
PUBLICLY-OWNED FACILITIES ARE ESTABLISHED AS AUTHORITIES, AND ARE
SUPPORTED FINANCIALLY VERY MUCH LIKE CORPORATIONS, I.E., THEY ARE NOT
BACKED BY THE TAXING AUTHORITY OF THE LOCAL GOVERNMENT. BECAUSE OF
THESE POTENTIAL PROBLEMS, THE AGENCY HAS DEVELOPED A REVENUE TEST WHICH,
IF MET, WOULD QUALIFY FACILITIES OWNED BY LOCAL GOVERNMENTS FOR AN
EXEMPTION. BECAUSE THIS TEST IS NEW, THE AGENCY IS PROPOSING THIS
PROVISION FOR PUBLIC COMMENT.
DRUM AND OTHER CONTAINERS PROVIDE AN INEXPENSIVE MEANS FOR GENERATORS
OF HAZARDOUS WASTES TO ACCUMULATE AND STORE THE WASTES, IN A FORM WHICH
WILL BE EASY AND RELATIVELY INEXPENSIVE TO CARRY AWAY. ALL TOO
FREQUENTLY, GENERATORS AND OTHERS STORING HAZARDOUS WASTE DRUMS HAVE
SIMPLY PUT THEM SOMEWHERE OUT OF SIGHT, WITHOUT ANY FURTHER CONCERN
ABOUT WHAT WOULD EVENTUALLY HAPPEN TO THE WASTES. THE MANY DAMAGE
INCIDENTS DESCRIBED IN THE BACKGROUND DOCUMENT ON CONTAINERS DETAIL THE
AWFUL CONSEQUENCES OF THIS PRACTICE. THE DRUMS EVENTUALLY WEATHER AND
CORRODE, RELEASING THEIR CONTENTS. DUMPS OF DECAYING DRUMS HAVE
SERIOUSLY CONTAMINATED SURFACE WATER AND GROUND WATER HAVE EMITTED FUMES
WHICH HAVE KILLED VEGETATION AND NAUSEATED AND SICKENED NEARBY
RESIDENTS, FACILITY OPERATORS, AND ENFORCEMENT OFFICIALS; AND HAVE
BURNED OR EXPLODED, INJURING AND KILLING FACILITY PERSONNEL AND SENDING
CLOUDS OF TOXIC SMOKE AND FUMES OVER ADJACENT HEAVILY POPULATED AREAS,
DISRUPTING THE ACTIVITIES AND THREATENING THE HEALTH OF THOUSANDS OF
PEOPLE.
THE MOST ELEMENTARY AND STRAIGHTFORWARD PRECUATIONS WILL FREQUENTLY
ELIMINATE THESE PROBLEMS. THESE REGULATIONS GENERALLY REQUIRE NOTHING
MORE THAN SIMPLE GOOD PRACTICES IN THE MANAGEMENT OF CONTAINERS OF
HAZARDOUS WASTES -- A LEVEL OF CARE COMMENSURATE WITH THE HAZARDOUS
NATURE OF THE WASTES STORED. THE AGENCY BELIEVES THAT THESE REGULATIONS
SHOULD NOT BE DIFFICULT TO IMPLEMENT, AND THAT THEY WILL PROVIDE A GREAT
IMPROVEMENT IN THE PROBLEMS POSED BY CURRENT BAD PRACTICES.
THE FINAL REGULATIONS FOR CONTAINERS ARE LARGELY TAKEN FROM THE
STANDARDS PROPOSED FOR INTERIM STATUS FOR CONTAINERS, FOR STORAGE
GENERALLY, AND FOR A FEW OTHER ACTIVITIES THAT PERTAIN TO CONTAINERS.
AS DISCUSSED BELOW, REQUIREMENTS FOR IGNITABLE, REACTIVE, OR
INCOMPATIBLE WASTES HAVE BEEN ADDED, AND THE PROVISIONS CONCERNING EMPTY
CONTAINERS HAVE BEEN RMOVED OR ABSORBED IN PART 261 -- IDENTIFICATION
AND LISTING OF HAZARD WASTE.
1. CONDITION OF CONTAINERS. THE PROPOSED REGULATIONS (SECTION
250.44-2(A)) REQUIRED THAT WASTES IN LEAKING OR DAMAGED CONTAINERS FOR
RECONTAINERIZED IN CONTAINERS IN GOOD CONDITION. EPA RECEIVED NO
COMMENTS ON THIS REQUIREMENT, AND IT HAS BEEN RETAINED IN THE FINAL
REGULATIONS. A PROVISION HAS BEEN ADDED ALLOWING WASTES TO BE MANAGED
IN OTHER WAYS THAN RECONTAINERIZATION, SO LONG AS THEY MEET THE
REQUIREMENTS OF PART 265.
2. COMPATABILITY OF WASTE WITH CONTAINER. THE FINAL REGULATION,
REQUIRING THAT CONTAINERS OR THEIR LINERS BE COMPATIBLE WITH THE WASTES
STORED IN THEM, IS ESSENTIALLY IDENTICAL TO THE PROPOSED REGULATION
(SECTION 250.44(H)) FOR STORAGE GENERALLY. IN CONTRAST TO THE
REGULATION FOR TANKS, THIS REGULATION RETAINS THE STANDARD THAT "THE
ABILITY OF THE CONTAINER TO CONTAIN THE WASTE (SHOULD NOT BE) IMPAIRED"
BY THE WASTE. WHILE SOME CORROSION BY WASTES MAY BE PERMISSIBLE FOR
TANKS, THE AGENCY BELIEVES THAT WASTE SHOULD NOT BE STORED IN A
CONTAINER IN WHICH IT MAY CAUSE ANY SUBSTANTIAL AMOUNT OF CORROSION.
FIRST, THE CONCEPT OF "USEFUL LIFE" DOES NOT WORK WELL WITH CONTAINERS.
MOST TANKS WILL REMAIN UNDER THE SUPERVISION OF A SINGLE OWNER OR
OPERATOR FOR A LONG PERIOD OF TIME. HOWEVER, A GENERATOR PLACING WASTE
IN A CONTAINER WILL PROBABLY NOT KNOW HOW LONG IT WILL BE STORED, AND
THE OPERATOR OF A STORAGE FACILITY WILL PROBABLY NOT KNOW JUST HOW LONG
HE CAN EXPECT A CONTAINER TO LAST. SECONDLY, CONTAINERS ARE GENERALLY
CONSTRUCTED OF LIGHTER MATERIALS THAN TANKS, AND HAVE SEMAS WHICH ARE
MORE VULNERABLE TO CORROSION. LEAKAGE DUE TO CORROSION IS THEREFORE
MORE LIKELY AND LESS PREDICTABLE FOR CONTAINERS THAN FOR TANKS.
3. MANAGEMENT OF CONTAINERS. THE PROPOSED DEFINITION FOR CONTAINERS
IMPLIED THAT THEY WERE CLOSABLE. THE FINAL DEFINITION IS BROADER,
INDICATING THAT ANY PORTABLE DEVICE CONTAINING HAZARDOUS WASTE COMES
UNDER THE REGULATIONS OF THIS PART. THE REQUIREMENT THAT CONTAINERS BE
KEPT CLOSED NOW APPEARS IN THE SUBSTANTIVE REGULATIONS. ITS PURPOSE IS,
AS IT WAS ORIGINALLY, TO MINIMIZE EMISSIONS OF VOLATILE WASTES, TO HELP
PROTECT IGNITABLE OR REACTIVE WASTES FROM SOURCES OF IGNITION OR
REACTION, TO HELP PREVENT SPILLS, AND TO REDUCE THE POTENTIAL FOR MIXING
OF INCOMPATIBLE WASTES AND DIRECT CONTACT OF FACILITY PERSONNEL WITH
WASTE. WHILE MANY COMMENTERS ARGUED AND THE AGENCY AGREES THAT STORAGE
MAY PROPERLY BE CONDUCTED IN OPEN TANKS AND SURFACE IMPOUNDMENTS,
REQUIRING CONTAINERS TO BE KEPT CLOSED DOES NOT UNNECESSARILY RESTRICT
STORAGE OPTIONS. ALL CONTAINERS HAVE LIDS OR SOME OTHER CLOSURE DEVICE,
AND KEEPING CONTAINERS CLOSED WHENEVER POSSIBLE IS SIMPLY A MATTER OF
GOOD OPERATING PRACTICE. IT IS NOT EXPECTED THAT CONTAINERS OF
HAZARDOUS WASTE NEED BE OPENED ROUTINELY TO INSPECT THE WASTE OR THE
CONTAINER OR THE REASONS OTHER THAN TO ADD OR REMOVE WASTE.
THE PROPOSED REGULATIONS ALSO REQUIRED (IN SECTION 250.44-2(B)) THAT
CONTAINERS BE MANAGED SO THAT THEY DO NOT RUPTURE OR LEAK. EPA RECEIVED
NO COMMENT ON THIS PROVISION AND IT HAS BEEN RETAINED AS PROPOSED. ITS
PURPOSE IS TO ASSURE THAT, IN ADDITION TO REMOVING WASTE FROM CONTAINERS
IN BAD CONDITION, OWNERS AND OPERATORS MANAGE CONTAINERS SO THAT THEY
STAY IN GOOD CONDITION, AND HANDLE THEM SO THAT THEY DO NOT RUPTURE.
4. INSPECTIONS. AS AN ADJUNCT TO THE GENERAL INSPECTION
REQUIREMENTS, THE REGULATIONS FOR VARIOUS TYPES OF FACILITIES AND
EQUIPMENT INCLUDE SPECIFIC INSPECTION REQUIREMENTS. THE REGULATIONS FOR
CONTAINERS CALL FOR WEEKLY INSPECTION OF CONTAINER STORAGE AREAS FOR
LEAKS AND DETERIORATION OF THE CONTAINERS. LEAKS AND CONTAINER
DETERIORATION ARE THE PRIMARY SOURCE OF DAMAGE FROM CONTAINER STORAGE
WHICH CAN BE MINIMIZED THROUGH INSPECTION. THE PROPOSED REGULATIONS
(SECTIONS 250.43-6 (A) AND 250.44(C)) CALLED FOR DAILY INSPECTIONS.
COMMENTERS BELIEVED THAT DAILY INSPECTIONS WERE UNNECESSARY, AND THAT
LESS FREQUENT INSPECTIONS WOULD BE ADEQUATE. THE AGENCY AGREES THAT
CORROSION OF CONTAINERS AND THE DEVELOPMENT OF LEAKS IS USUALLY A SLOW
PROCESS, AND THAT DAILY INSPECTIONS ARE TYPICALLY MORE FREQUENT THAN IS
NECESSARY; WEEKLY INSPECTIONS SHOULD GENERALLY BE ADEQUATE.
5. CLOSURE. BECAUSE THESE REGULATIONS APPLY TO THE STORAGE OF
HAZARDOUS WASTES, THE DEFINITION OF STORAGE REQUIRES THAT ALL HAZARDOUS
WASTES AND HAZARDOUS WASTE RESIDUES MUST BE REMOVED AT CLOSURE FROM A
CONTAINER STORAGE FACILITY OR FROM THAT PART OF THE FACILITY BEING
CLOSED. THE CLOSURE PLAN REQUIRED BY SUBPART G MUST ADDRESS THIS
REQUIREMENT. IN REMOVING HAZARDOUS WASTES OR RESIDUES, THE OWNER OR
OPERATOR BECOMES A GENERATOR OF HAZARDOUS WASTES AND MUST MANAGE THEM IN
ACCORDANCE WITH ALL APPLICABLE REQUIREMENTS OF PARTS 262, 263, AND 265
OF THESE REGULATIONS.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 048 OF 106
COSTLE D M ADMINISTRATOR
EPA
113412
REGULATION
/1/ THE AGENCY ALSO MISTAKENLY PROPOSED TWO DEFINITIONS FOR STORAGE
TANKS, IN SECTIONS 250.21 AND 250.41. THEY WERE THE SAME EXCEPT THAT
THE LATTER PROVIDED THAT WASTE IN STORAGE TANKS MUST BE PUMPABLE; THIS
REQUIREMENT WAS NOT INTENDED AND HAS BEEN REMOVED. IN ADDITION, BASINS
WERE DEFINED TO BE LESS THAN 100,000 GALLONS IN CAPACITY. THIS WAS
INCLUDED ONLY TO HELP DISTINGUISH BASINS FROM SURFACE IMPOUNDMENTS,
WHICH MAY BE LARGER THAN 100,000 GALLONS. BECAUSE THE 100,000 GALLON
LIMIT PROVED CONFUSING AND BECAUSE BASISN (NOW TANKS) AND SURFACE
IMPOUNDMENTS ARE ADEQUATELY DISTINGUISHED BY THEIR CONSTRUCTION
MATERIALS, THE 100,000 GALLON LIMIT HAS BEEN DELETED.
6. SPECIAL REQUIREMENTS FOR IGNITABLE OR REACTIVE WASTE. THE
PROPOSED RULES DID NOT CONTAIN ANY SPECIAL STANDARDS FOR IGNITABLE OR
REACTIVE WASTES. SIMPLY AS A MATTER OF GOOD PRACTICE, IGNITABLE OR
REACTIVE WASTES SHOULD, OF COURSE, BE PROTECTED FROM ANY CONDITIONS OR
MATERIALS THAT COULD CAUSE THEM TO IGNITE OR REACT, IN ORDER TO GUARD
AGAINST FIRES, EXPLOSIONS, OR VIOLENT REACTIONS.
THE REQUIREMENT IN THESE REGULATIONS THAT CONTIANERS OF IGNITABLE OR
REACTIVE WASTE BE 15 METERS (50 FEET) FROM THE FACILITY'S PROPERTY LINE
IS TAKEN FROM THE NATIONAL FIRE PROTECTION ASSOCIATION'S (NFPA)
FLAMMABLE AND COMBUSTIBLE CODE OF 1977. THE PURPOSE OF THE SETBACK
REQUIRED IN THE CODE IS TO PROTECT ADJACENT RESIDENCES, BUSINESSES, AND
OTHER PUBLIC PLACES FROM THE ACUTE EFFECTS OF EXPLOSIONS AND FIRES THAT
MAY BE CAUSED IN FACILITIES THAT STORE FLAMMABLE MATERIALS. WHILE THE
AGENCY BELIEVES THAT THE CODE PROVIDES AN ADEQUATE BASIS FOR REQUIRING A
MINIMUM SETBACK OF 50 FEET, THE AGENCY DOES NOT YET HAVE ENOUGH DATA TO
DETERMINE WHETHER AN ADDITIONAL SETBACK SHOULD BE REQUIRED WHERE HIGHLY
EXPLOSIVE OR TOXIC WASTES ARE STORED. THE AGENCY EXPECTS TO MONITOR THE
EFFECTIVENESS OF THIS REGULATION AND REVISE IT IF NECESSARY. SINCE THE
NFPA REQUIREMENTS IS STRAIGHTFORWARD AND ALREADY APPLIES UNDER OSHA
REGULATIONS OF FACILITIES, IT IS APPROPRIATE FOR INCLUSION IN THE
INTERIM STATUS STANDARDS. SINCE THIS REGULATION WAS NOT PROPOSED, IT IS
BEING PROMULGATED INTERIM FINAL.
7. SPECIAL REQUIREMENTS FOR INCOMPATIBLE WASTES. GENERAL
REQUIREMENTS FOR INCOMPATIBLE WASTES ARE DISCUSSED ABOVE IN THE PREAMBLE
SECTION ENTITLED "GENERAL REQUIREMENTS FOR IGNITABLE, REACTIVE, OR
INCOMPATIBLE WASTES."
THE PROPOSED INTERIM STATUS REGULATIONS CONTAINED A PROVISION
(SECTION 250.44(I)) PROHIBITING THE PLACEMENT OF A HAZARDOUS WASTE IN AN
UNWASHED CONTAINER WHICH HAD PREVIOUSLY HELD AN INCOMPATIBE WASTE. THE
FINAL REGULATIONS RETAIN THIS PROVISION, WITH THE MODIFICATION THAT
PLACEMENT OF A WASTE IN SUCH AN UNWASHED CONTAINER IS ALLOWED IF IT WILL
NOT VIOLATE THE GENERAL STANDARDS FOR THE HANDLING OF INCOMPATIBLE
WASTES. THIS REGULATION IS REQUIRED BECAUSE EVEN "EMPTY" CONTAINERS
TYPICALLY HAVE A CERTAIN AMOUNT OF WASTE REMAINING ON THE BOTTOM OR THE
SIDES. THE FACT THAT THE CONTAINER ITSELF MAY BE COMPATIBLE WITH BOTH
WASTES WILL NOT PREVENT THEM FROM REACTING WITH EACH OTHER IF THEY ARE
INCOMPATIBLE. COMPLIANCE WITH THIS REGULATION WILL PROBABLY REQUIRE
OWNERS OR OPERATORS TO WASH EMPTY CONTAINERS OR TO BE ABLE TO DETERMINE
THE PROPERTIES OF THE MATERIALS THEY LAST CONTAINED THROUGH RECORDS,
SEGREGATED STORAGE OF EMPTY CONTAINERS, TESTS, OR SOME OTHER MEANS.
THE FINAL REGULATIONS ALSO PROVIDE THAT INCOMPATIBLE WASTES OR
MATERIALS MUST NOT BE PLACED IN THE SAME CONTAINER UNLESS THE GENERAL
STANDARDS FOR INCOMPATIBLE WASTES WILL BE COMPLIED WITH. THE PROPOSED
REGULATIONS DID NOT CONTAIN SUCH A PROVISION BECAUSE IT WAS THOUGHT THAT
PLACEMENT OF INCOMPATIBLE WASTE IN CONTAINERS WAS NOT TYPICAL. WHILE
SUCH MIXING MAY NOT BE COMMON, THE AGENCY HAS DECIDED AS A MATTER OF
COMPLETENESS THAT IT SHOULD BE COVERED BY THE INCOMPATIBLE WASTE
REGULATIONS. THE NEED FOR COMPLYING WITH THE GENERAL REQUIREMENTS FOR
INCOMPATIBLE WASTES IS AS CLEAR HERE AS IT IS IN OTHER CASES WHERE
INCOMPATIBLE WASTES ARE MIXED. THE REQUIREMENT IS STRAIGHTFORWARD AND
APPROPRIATE FOR INTERIM STATUS.
THE PROPOSED REGULATIONS ALSO CONTAINED A PROVISION (SECTION
250.44-2(D)) THAT CONTAINERS HOLDING INCOMPATIBLE WASTES SHOULD BE
SEPARATED OR PROTECTED FROM EACH OTHER TO PREVENT MIXING OF INCOMPATIBLE
WASTES IF CONTAINERS SHOULD LEAK OR BREAK. THE FINAL REGULATION
CLARIFIES THE PROPOSED REGULATION. IT EXTENDS IT TO CONTAINERS STORED
NEAR INCOMPATIBLE WASTES IN OTHER CONTAINERS OR IN PILES, OPEN TANKS, OR
SURFACE IMPOUNDMENTS WHERE THE INCOMPATIBLE WASTES ARE EXPOSED ON THE
SURFACE. IT ALSO INDICATES THAT PROTECTION WILL TYPICALLY BE IN THE
FORM OF A DIKE, BERM, OR WALL. "NEARBY" SHOULD BE INTERPRETED TO MEAN
CLOSE ENOUGH SO THAT WASTES FROM BROKEN OR LEAKING CONTAINERS MIGHT
COMMINGLE WITH INCOMPATIBLE WASTES BEFORE THE SITUATION WOULD BE
DISCOVERED AND CORRECTED IN THE ORDINARY COURSE OF OPERATIONS.
8. EMPTY NON-COMBUSTIBLE STORAGE CONTAINERS. THE PROPOSED INTERIM
STATUS REGULATIONS CONTAINED A SECTION (SECTION 250.44-2(F)) REQUIRING
EMPTY NON-COMBUSTIBLE CONTAINERS TO BE RECYCLED IN SOME FASHION. THIS
SECTION WAS INTENDED PARTLY TO ASSURE PROPER MANAGEMENT OF THE HAZARDOUS
WASTE RESIDUES REMAINING IN THE EMPTY CONTAINERS, AND PARTLY TO
IMPLMENET ONE OF THE OBJECTIVES OF SECTION 1003 OF RCRA -- TO PROMOTE
THE RECYCLING AND RECOVERY OF MATERIAL AND ENERGY RESOURCES. THE AGENCY
HAS RECONSIDERED ITS POSITION, IN LIGHT OF COMMENTS RECEIVED ON THIS
SECTION, AND HAS CHANGED THE FOCUS OF THESE REGULATIONS TO THE
PROTECTION OF HUMAN HEALTH AND THE ENVIRONMENT THROUGH THE APPROPRIATE
MANAGEMENT OF HAZARDOUS WASTE. SOME CONTAMINATED CONTAINERS ARE LISTED
AS HAZARDOUS WASTES UNDER PART 261 OF THESE REGULATIONS, AND MUST BE
MANAGED AS SUCH OR RE-USED. AS A RESULT, THE REGULATIONS ON EMPTY
NON-COMBUSTIBLE CONTAINERS HAVE BEEN DELETED FROM THIS SECTION.
9. PROPER BAGS. ANOTHER SECTION OF THE PROPOSED INTERIM STATUS
REGULATIONS (SECTION 250.44-2(G)) REQUIRED THAT CONTAMINATED PAPER BAGS
BE MANAGED IN CLOSED SECONDARY CONTAINERS. EPA RECEIVED A NUMBER OF
COMMENTS ON THIS REQUIREMENT ARGUING THAT THE STANDARD WAS UNNECESSARY
BECAUSE THE AMOUNT OF WASTE WHICH ADHERES TO SUCH BAGS IS SMALL, AND
THAT THE BAGS CAN BE PROPERLY MANAGED BY OTHER MEANS. IN LIGHT OF THE
COMMENTS, THE AGENCY HAS REORGANIZED THE PROPOSED REGULATIONS. SOME
BAGS AND LINERS CONTAMINATED WITH CERTAIN TOXIC MATERIALS ARE NOW LISTED
AS HAZARDOUS WASTES IN PART 261 AND MUST BE MANAGED LIKE OTHER HAZARDOUS
WASTES. OTHER CONTAMINATED BAGS ARE NOT DECLARED HAZARDOUS AND ARE NO
LONGER REGULATED UNDER THIS PART. IN EITHER CASE, THE PROPOSED
REGULATION IS UNNECESSARY AND HAS BEEN DELETED.
1. DEFINITIONS. IN THE PROPOSED RULES, THE STANDARDS FOR TANKS WERE
MARKEDLY DIFFERENT FROM THOSE FOR BASINS. TANKS WERE REGULATED AS
COVERED CONTAINMENT DEVICES USED FOR STORING HAZARDOUS WASTE. BY
CONTRAST, BASINS WERE REGULATED AS UNCOVERED CONTAINMENT DEVICES USED
FOR TREATING HAZARDOUS WASTE. (THE PROPOSED RULES DID NOT ADDRESS THE
USE OF TANKS FOR TREATING HAZARDOUS WASTE.) BOTH TANKS AND BASINS WERE
ASSUMED TO BE CONSTRUCTED PRIMARILY OF ARTIFICAL MATERIALS OR WOOD,
RATHER THAN EARTHEN MATERIALS.
THE AGENCY'S RE-EVALAUTION OF ITS CONCEPTION OF STORAGE NOW PERMITS
STORAGE TO BE CONDUCTED IN UNCOVERED AS WELL AS COVERED DEVICES, SUCH AS
SURFACE IMPOUNDMENTS. THUS BASINS, AS THEY WERE DEFINED IN THE PROPOSED
REGULATIONS, ARE NOW RECOGNIZED AS APPROPRIATE STORAGE DEVICES, AND THE
AGENCY HAS RECOGNIZED THAT TREATMENT AS WELL AS STORAGE TANKS
ESSENTIALLY IDENTICAL. AS A RESULT, THE AGENCY HAS COMBINED THE TWO
CONCEPTS INTO ONE; TANKS ARE NOW DEFINED TO BE "STATIONARY DEVICE(S)
DESIGNED TO CONTAIN AN ACCUMULATION OF HAZARDOUS WASTE AND CONSTRUCTED
PRIMARILY OF NON-EARTHEN MATERIALS . . . WHICH PROVIDE STRUCTURAL
SUPPORT." TANKS ARE REFERRED TO AS COVERED OR UNCOVERED WHEN
APPROPRIATE. THE TERM "BASIN" HAS BEEN ELIMINATED FROM THE REGULATIONS.
/1/
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 049 OF 106
COSTLE D M ADMINISTRATOR
EPA
113413
REGULATION
THE AGENCY HAS REORGANIZED THE REGULATIONS TO GATHER THE PROPOSED
STANDARDS FOR TANKS INTO ONE SUBPART (SUBPART J). THIS SUBPART INCLUDES
STANDARDS FROM THOSE THAT WERE PROPOSED FOR STORAGE TANKS (SECTIONS
250.44-1) AND BASINS (SECTION 250.45-4), FOR STORAGE GENERALLY (250.44),
FOR TREATMENT GENERALLY (SECTION 250.45), AND FOR CHEMICAL, PHYSICAL,
AND BIOLOGICAL TREATMENT FACILITIES (SECTION 250.45-6). A NUMBER OF
OTHER STANDARDS FROM THE PROPOSED SECTION 3004 STANDARDS HAVE BEEN
INCORPORATED INTO THE PRESENT SET OF INTERIM STATUS STANDARDS FOR TANKS.
THE FOLLOWING DISCUSSION IS ORGANIZED ALONG THE LINES OF THE PRESENT
SUBPART J.
IN ADDITION, AS EXPLAINED UNDER SUBPART Q, THE REGULATIONS FOR
CHEMICAL, PHYSICAL, AND BIOLOGICAL TREATMENT FACILITIES (SUBPART Q) ARE
ESSENTIALLY IDENTICAL TO THE REGULATIONS FOR TANKS. THE FOLLOWING
DISCUSSION THEREFORE ALSO SERVES TO PRESENT THE FOUNDATION FOR THE
SUBPART Q REGULATIONS. REFERENCES TO TANKS IN THE FOLLOWING DISCUSSION
ARE ALSO MEANT TO INCLUDE THE WASTE CONTAINMENT COMPONENTS OF CHEMICAL,
PHYSICAL, AND BIOLOGICAL TREATMENT EQUIPMENT.
THE GENERAL OPERATING REQUIREMENTS AND THE REQUIREMENTS FOR WASTE
ANALYSIS AND TRIAL TESTS WERE PROPOSED PRIMARILY FOR INCLUSION IN THE
GENERAL STANDARDS AND PARTLY FOR INCLUSION IN THE INTERIM STATUS
STANDARDS. THEY ARE THEREFORE BEING PROMULGATED INTERIM FINAL ONLY TO
THE EXTENT THAT THE AGENCY WILL CONSIDER COMMENTS ON WHETHER THEY ARE
APPROPRIATE FOR INCLUDION IN THE INTERIM STATUS STANDARDS.
2. GENERAL OPERATING REQUIREMENTS. THE PROPOSED INTERIM STATUS
STANDARDS FOR STORAGE (SECTION 250.44(H)) AND THE PROPOSED GENERAL
STANDARDS FOR BASINS (SECTION 250.45-4(B)(1), (D), AND (E)) AND
CHEMICAL, PHYSICAL, AND BIOLOGICAL TREATMENT FACILITIES (SECTION
250.45-6(A) AND (B)(2)) INCLUDED REQUIREMENTS WHICH PLACED RESTRICTIONS
ON THE TYPE OF MATERIALS USED TO BUILD TANKS AND THE TYPE OF WASTE
PALCED IN THEM, TO ENSURE THAT THE WASTE WAS COMPATIBLE WITH THE
CONSTRUCTION MATERIAL OF THE TANK.
FEW COMMENTS WERE RECEIVED ON THESE PROPOSED STANDARDS. SOME
COMMENTERS SUGGESTED THAT THE STANDARDS SHOULD BE MODIFIED TO REFLECT
THE FACT THAT THE CONSTRUCTION MATERIALS OF MOST TANKS WILL INEVITABLY
BE SOMEWHAT IMPAIRED BY THE CHEMICAL PROPERTIES OF THE WASTES THEY
CONTAIN. THE AGENCY AGREES THAT TANKS NEED NOT BE DESIGNED TO LAST
FOREVER. THEREFORE, THE FINAL RULES HAVE BEEN MODIFIED TO REQUIRE THAT
THE ABILITY OF TANKS TO CONTAIN WASTE DURING THEIR INTENDED LIFE IS NOT
IMPAIRED.
PORPOSED SECTION 250.45-6(E) PROVIDED FOR A 2-FOOT FREEBOARD FOR
UNCOVERED REACTION VESSELS. SOME COMMENTERS FELT THAT THE 2-FOOT
FREEBOARD REQUIREMENT SHOULD BE MADE MORE FLEXIBLE BY ALLOWING OWNERS OR
OPERATORS TO USE OTHER METHODS TO PREVENT HAZARDOUS WASTE FROM SPLASHING
OVER THE RIM OF AN UNCOVERED TANK. THE AGENCY AGREES THAT METHODS SUCH
AS DIKES, TRENCHES, OR DIVERSION TO STAND-BY TANKS MAY PROVIDE A DEGREE
OF PROTECTION EQUAL TO THAT AFFORTED BY 2 FEET OF FREEBOARD. THEREFORE,
THE STANDARD HAS BEEN MODIFIED TO REQUIRE UNCOVERED TANKS TO EITHER HAVE
(1) 2 FEET OF FREEBOARD OR (2) A CONTAINMENT, DRAINAGE CONTROL, OR
DIVERSION STRUCTURE WHICH HAS A CAPACITY THAT EQUALS OR EXCEEDS THE
VOLUME OF THE TOP 2 FEET OF THE TANK.
IN A SIMILAR VEIN, SOME COMMENTERS FELT THAT THE PROPOSED REQUIREMENT
FOR AN AUTOMATIC WASTE FEED CUT-OFF OR BY-PASS SYSTEM (SECTION
250.45-6(G)) SHOULD BE MADE MORE FLEXIBLE BY ALLOWING OWNERS OR
OPERATORS TO USE OTHER TYPES OF EMERGENCY RESPONSE SYSTEMS IN THE EVENT
THAT THEIR TREATMENT PROCESS BREAK DOWN. THE AGENCY AGREES AND HAS
REWRITTEN THE STANDARD IN TERMS OF A PERFORMANCE STANDARD. THE FINAL
STANDARD REQUIRES THAT FACILITIES AT WHICH HAZARDOUS WASTE IS
CONTINUOUSLY FED INTO TANK BE EQUIPPED WITH A MEANS TO PREVENT THE
INFLOW OF WASTE TO THE TANK, BUT IT DOES NOT REQUIRE THAT ANY PARTICULAR
METHOD(S) BE USED TO ACCOMPLISH THIS OBJECTIVE. WITH THE DELETION OF
THE REQUIREMENT THAT THE CUT-OFF BE AUTOMATIC, THE REQUIREMENT IS
CERTAINLY APPROPRIATE FOR INCLUSION IN THE INTERIM STATUS STANDARDS
BECAUSE IT SHOULD NOT REQUIRE MAJOR EQUIPMENT MODIFICATION.
3. WASTE ANALYSIS AND TRIAL TESTS. AS AN ADJUNCT TO THE INCLUSION
OF GENERAL REQUIREMENTS FOR WASTE ANALYSIS IN THE INTERIM STATUS
STANDARDS, THE AGENCY IS INCLUDING SPECIFIC WASTE ANALYSIS STANDARDS FOR
SPECIFIC TYPES OF FACILITIES AND EQUIPMENT. THOSE FOR TANKS; CHEMICAL,
PHYSICAL, AND BIOLOGICAL TREATMENT FACILITIES; AND SURFACE IMPOUNDMENTS
ARE DRAWN FROM PROPOSED SECTION 250.45-6(B) AND (C), AND COMBINED INTO A
SINGLE REQUIREMENT FOR EACH TYPE OF FACILITY. THE PURPOSE OF THESE
REQUIREMENTS IS TO PREVENT ACCIDENTS AND HAPHAZARD EXPERIMENTATION WITH
NEW WASTES OR NEW TREATMENT TECHNIQUES WHEN CHEMICAL TREATMENT OF LARGE
BATCHES OF WASTE IS INVOLVED. PUT ANOTHER WAY, THESE REQUIREMENTS
ENSURE THAT THE OPERATOR KNOWS NOT ONLY THE CHARACTERISTICS OF THE WASTE
INVOLVED, BUT HOW THAT WASTE WILL BEHAVE IN A TREATMENT PROCESS, OR HOW
A NEW TREATMENT PROCESS WILL AFFECT THE WASTES AND THE FACILITY.
HAPHAZARD EXPERIMENTATION OR TREATMENT OF WASTE WITHOUT TRIAL TESTS MAY
CAUSE CORROSION OF CONTAINMENT DEVICES, FIRES, EXPLOSIONS, AND OTHER
PROBLEMS ASSOCIATED WITH IGNITABLE, REACTIVE, OR INCOMPATIBLE WASTES.
TRIAL TESTS, OR DOCUMENTED INFORMATION OR SIMILAR WASTES UNDER SIMILAR
TREATMENT PROCESSES AND SIMILAR OPERATING CONDITIONS, SHOULD BRING TO
LIGHT UNANTICIPATED PROBLEMS BEFORE LARGE BATCHES OF WASTE ARE TREATED.
THE COMMENTS HAVE PROMPTED SEVERAL CHANGES TO THE PROPOSED SECTIONS.
THE REGULATIONS HAVE BEEN REVISED TO MAKE CLEAR THE AGENCY'S ORIGINAL
INTENT THAT WASTE CONTINUOUSLY FLOWING INTO A TREATMENT PROCESS NEED NOT
BE CONTINUOUSLY TESTED; TESTS OR INFORMATION ARE REQUIRED ONLY BEFORE
THE PROCESS IS BEGUN, OR WHEN THE WASTE OR TREATMENT PROCESS CHANGES
SIGNIFICANTLY. DOCUMENTED INFORMATION MAY BE USED IN PLACE OF TESTS
WHEN THE INFORMATION COVERS WASTES, PROCESSES, AND OPERATING CONDITIONS
SIMILAR TO THE ONES TO BE UNDERTAKEN. HOWEVER, RELIANCE ON DOCUMENTED
INFORMATION DOES NOT RELIEVE THE OWNER OR OPERATOR OF PRIMARY
RESPONSIBILITY FOR ASSURING THAT HE COMPLIES WITH THE REMAINDER OF THE
REGULATIONS.
4. INSPECTIONS. CITING THE RELATIVE STRUCTURAL STABILITY OF TANKS
(AND THE DIKES SURROUNDING THEM), SEVERAL COMMENTERS SUGGESTED THAT THE
PROPOSED DAILY INSPECTION SCHEDULE (SECTION 250.43-6 AND SECTION
250.44(C)) WAS UNNECESSARY FOR TANKS. EPA AGREES THAT TANKS AND DIKES
NEED NOT BE INSPECTED DAILY, AND HAS THEREFORE CHANGED THE FREQUENCY FOR
INSPECTION OF THESE ASPECTS OF FACILITIES FROM DAILY TO WEEKLY. HOWEVER,
THE DAILY INSPECTION REQUIREMENT HAS BEEN RETAINED FOR EMERGENCY
RESPONSE SYSTEMS (E.G., WASTE FEED CUT-OFF OR BY-PASS SYSTEMS), THE DATA
GATHERED FROM MONITORING EQUIPMENT (E.G., PRESSURE AND TEMPERATURE
GAUGES) AND WASTE LEVEL INDICATORS AT TANKS.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 050 OF 106
COSTLE D M ADMINISTRATOR
EPA
113414
REGULATION
5. IGNITABLE, REACTIVE, OR INCOMPATIBLE WASTES. REQUIREMENTS FOR
IGNITABLE, REACTIVE, OR INCOMPATIBLE WASTES WERE PROPOSED FOR INTERIM
STATUS IN STANDARDS FOR STORAGE (SECTION 250.44(I)) AND IN STANDARDS FOR
TREATMENT (SECTION 250.45(C) AND NOTE), AND FOR THE GENERAL STANDARDS
UNDER BASINS (SECTION 250.45-4(B) AND (C)). MOST OF THE REQUIREMENTS IN
THE PRESENT REGULATION ARE DISCUSSED ABOVE IN THE GENERAL SECTION ON
IGNITABLE, REACTIVE, OR INCOMPATIBLE WASTES.
THE AGENCY HAS ADDED A STANDARD TO THE REGULATIONS WHICH REQUIRES
FACILITIES STORING OR TREATING IGNITABLE OR REACTIVE WASTE IN TANKS TO
COMPLY WITH THE NATIONAL FIRE PROTECTION ASSOCIATION'S (NFPA'S) BUFFER
ZONE REQUIREMENTS FOR TANKS, CONTAINED IN TABLES 2-1 THROUGH 2-6 OF THE
"FLAMMABLE AND COMBUSTIBLE CODE - 1977". THE PURPOSE OF THIS STANDARD
IS TO MINIMIZE THE POTENTIAL FOR INJURY TO THE FACILITY, FACILITY
PERSONNEL, AND THE NEIGHBORING PUBLIC FROM FLYING DEBRIS AND TOXIC AIR
EMISSIONS WHICH COULD RESULT FROM EXPLOSIONS OR FIRES INVOLVING
HAZARDOUS WASTE. THE STANDARD APPLIES ONLY TO IGNITABLE OR REACTIVE
WASTE BECAUSE THE POTENTIAL FOR FIRES AND EXPLOSIONS IS LARGELY CONFINED
TO SUCH WASTES. THE NFPA STANDARDS ALREADY APPLY TO MANY TANKS
CONTAINING IGNITABLE MATERIALS UNDER OSHA REGULATIONS. SINCE THIS
REQUIREMENT WAS NOT PROPOSED, IT IS BEING PROMULGATED INTERIM FINAL, AND
THE AGENCY WILL CONSIDER COMMENTS ON IT.
6. CLOSURE. THE PROPOSED INTERIM STATUS STANDARDS FOR BASINS
(SECTION 250.45-4(H)) AND THE PROPOSED GENERAL STANDARDS FOR CHEMICAL,
PHYSICAL, AND BIOLOGICAL TREATMENT FACILITIES (SECTION 250.45-6(H))
REQUIRED THAT ALL HAZARDOUS WASTE AND HAZARDOUS WASTE RESIDUES BE
REMOVED WHEN THE FACILITY CLOSED, AND BE DISPOSED OF AS HAZARDOUS WASTE.
A FEW COMMENTERS CONTENDED THAT THE REQUIREMENT THAT ALL RESIDUES
RESULTING FROM TREATMENT PROCESSES WOULD HAVE TO BE MANAGED AS HAZARDOUS
WASTE WAS INCONSISTENT WITH THE STATEMENT IN THE PREAMBLE TO THE
PROPOSED SECTION 3001 RULES, WHICH REQUIRED THAT WASTE BE ANALYZED ONLY
WHEN THE GENERATOR HAS REASON TO BELIEVE THAT HIS WASTE IS HAZARDOUS.
THE AGENCY BELIEVES THAT TREATMENT RESIDUES WILL NORMALLY BE HAZARDOUS.
TO CLARIFY ITS POSITION, THE AGENCY HAS REVISED THE PART 261 RULES SO
THAT THEY NOW SPECIFY THAT RESIDUES FROM HAZARDOUS WASTE TREATMENT
PROCESSES ARE A HAZARDOUS WASTE UNLESS THE OWNER OR OPERATOR CAN
DEMONSTRATE OTHERWISE (SEE THE PART 261 PREAMBLE FOR THE RATIONALE FOR
THIS CHANGE). THE PRESENT REGULATIONS RECITE THIS IN A COMMENT.
SURFACE IMPOUNDMENTS, ALSO KNOWN AS PITS, PONDS, OR LAGOONS, ARE
OFTEN USED TO TREAT, STORE, OR DISPOSE OF HAZARDOUS WASTE. A SURFACE
IMPOUNDMENT IS DEFINED AS A PART OF A FACILITY WHICH IS A NATURAL
TOPOGRAPHIC DEPRESSION, MAN-MADE EXCAVATION, OR DIKED AREA FORMED
PRIMARILY OF EARTHEN MATERIALS, ALTHOUGH IT MAY BE LINED WITH MAN-MADE
MATERIALS. IMPOUNDMENTS ARE DESIGNED TO HOLD AN ACCUMULATION OF LIQUID
WASTES AND WASTES CONTAINING FREE LIQUIDS. SOME ARE LINED WITH CLAY OR
SYNTHETIC MATERIALS TO REDUCE OR ELIMINATE LEAKAGE TO GROUND WATER.
LEAKAGE TO GROUND WATER POSES THE MOST SERIOUS THREAT TO HUMAN HEALTH
AND THE ENVIRONMENT FROM IMPOUNDMENTS, BUT AIR EMISSIONS FROM VOLATILE
WASTES AND OVERTOPPING OF THE IMPOUNDMENT AS A RESULT OF OVERFILLING.
PRECIPATION, OR WIND CAN ALSO BE SERIOUS PROBLEMS. DISCHARGES TO
SURFACE WATER, WHICH MAY BE ASSOCIATED WITH SUCH IMPOUNDMENTS ARE
SUBJECT TO CONTROL UNDER THE CLEAN WATER ACT (NPDES PROGRAM).
THE REQUIREMENTS FOR MINIMUM FREEBOARD, PROTECTIVE COVER ON DIKES
("CONTAINMENT SYSTEM"), WASTE ANALYSIS AND TRIAL TESTS, SPECIAL
REQUIREMENTS FOR IGNITABLE AND REACTIVE WASTES, AND SPECIAL REQUIREMENTS
FOR INCOMPATIBLE WASTES WERE ALL PROPOSED FOR INCLUDION IN THE GENERAL
STANDARDS IN A FORM NOT RADICALLY DIFFERENT FROM THAT PROPOSED HERE.
SINCE THEY WERE NOT PROPOSED FOR INCLUSION IN THE INTERIM STATUS
STANDARDS, THEY ARE BEING PROMULGATED INTERIM FINAL ONLY TO THE EXTENT
THAT THE AGENCY SOLICITS COMMENTS ON WHETHER THEY ARE SUITABLE FOR
INCLUSION IN THE INTERIM STATUS STANDARDS.
FINAL RCRA INTERIM STATUS REGULATIONS FOR SURFACE IMPOUNDMENTS
INVOLVE THE FOLLOWING ISSUES.
1. EXISTING SURFACE IMPOUNDMENTS. MANY COMMENTERS STATED THAT THE
PROPOSED GENERAL REGULATIONS WERE INFEASIBLE FOR EXISTING SURFACE
IMPOUNDMENTS. THEY ARGUED THAT RETROFITTING THOUSANDS OF EXISTING
IMPOUNDMENTS WOULD BE IMPRACTICAL, AND SUGGESTED LESS STRINGENT
REGULATIONS FOR EXISTING IMPOUNDMENTS, UNLESS THEY WERE FOUND TO BE
CAUSING AN ENVIRONMENTAL PROBLEM. THE AGENCY AGREES THAT IF AN OWNER OR
OPERATOR CAN DEMONSTRATE THAT AN EXISTING SURFACE IMPOUNDMENT IS NOT
CONTRIBUTING MEASURABEL QUANTITIES OF CONTAMINANTS TO GROUND WATER,
RETROFITTING SHOULD NOT BE REQUIRED IN THE INTERIM STATUS REGULATIONS.
(TO THE EXTENT THE COMMENTS ADDRESSED ISSUES RELEVANT ONLY TO THE
GENERAL REGULATIONS, THOSE COMMENTS WILL BE ADDRESSED WHEN THE FINAL
GENERAL REGULATIONS ARE ISSUED.) THIS ISSUE WAS DISCUSSED AT LENGTH IN
THE PREVIOUS DISCUSSION OF EXISTING FACILITIES.
THESE REGULATIONS MAY REQUIRE RETROFITTING OF SOME EXISTING SURFACE
IMPOUNDMENTS FOR MAINTAINING FREEBOARD AND PROVIDING PROTECTIVE COVER
FOR EARTHERN DIKES. HOWEVER, THESE REQUIREMENTS ARE STANDARD FEATURES
OF PORPERLY ENGINEERED SURFACE IMPOUNDMENTS, AND SHOULD NOT POSE A
SUBSTANTIAL BURDEN TO OWNERS OR OPERATORS OF MOST IMPOUNDMENTS.
2. MINIMUM FREEBOARD. THE PROPOSED GENERAL STANDARDS PROVIDED A
MINIMUM FREEBOARD REQUIREMENT. THE AGENCY BELIEVES THAT SUCH A
FREEBOARD REQUIREMENT MEETS THE CRITERIA FOR INTERIM STATUS STANDARDS.
IT IS ACCEPTED ENGINEERING PRACTICE TO DESIGN SURFACE IMPOUNDMENTS WITH
SUFFICIENT FREEBOARD TO PROTECT AGAINST OVERTOPPING BY WAVES OR
PRECIPITATION, AND MOST SURFACE IMPOUNDMENTS ALREADY HAVE 2 FEET OF
FREEBOARD. AT LEAST SIX STATES ALREADY REQUIRE THE 2-FOOT FREEBOARD
REQUIRED IN THESE REGUALATIONS. AS A RESULT, AN INTERIM STATUS
FREEBOARD REQUIREMENT WILL NOT TYPICALLY REQUIRE LARGE CAPITAL
EXPENDITURES BY OWNERS OR OPERATORS, NOR WILL IT REQUIRE INTERACTION
WITH THE REGIONAL ADMINISTRATOR. FOR THOSE FACILITIES WHICH DO NOT MEET
THE MINIMUM FREEBOARD REQUIREMENTS, THE MINIMUM FREEBOARD CAN BE
ESTABLISHED IN A SHORT PERIOD OF TIME BY SUCH MEANS AS REDUCING THE
QUANTITY OF WASTE OR ADDING ADDITIONAL HEIGHT TO THE DIKES.
THE PROPOSED REGULATION REQUIRED THAT THE FREEBOARD IN A SURFACE
IMPOUNDMENT BE CAPABLE OF CONTAINING RAINFALL FROM A 24-HOUR, 25-YEAR
STORM, BUT NOT BE LESS THAN 2 FEET. THE OBJECTIVE WAS TO PREVENT
SPILLOVER OF HAZARDOUS WASTE FROM WAVES OR RAINFALL, AND TO REDUCE THE
RISK OF OVERFILLING. COMMENTS VARIED FROM SUGGESTIONS THAT THERE BE NO
REQUIREMENTS FOR FREEBOARD TO SUGGESTIONS FOR MORE STRINGENT
REQUIREMENTS.
THE AGENCY HAS RE-EVALUATED THE EFFECT OF A 24-HOUR, 25-YEAR STORM,
AND HAS FOUND THAT IT WOULD NECESSITATE A SMALLER FREEBOARD REQUIREMENT
THAN THE SPECIFIED MINIMUM OF 2 FEET. IT IS THUS UNNECESSARY. THE SAME
IS TRUE OF ALL OTHER SUGGESTED STORM STANDARDS, INCLUDING THE 24-HOUR,
100-YEAR STORM.
NO COMMENTS FOCUSES ON THE SPECIFIC MEASURE OF 2 FEET FOR MINIMUM
FREEBOARD. ENGINEERING HANDBOOKS, TEXTBOOKS, DESING MANUALS, AND STATE
REGULATIONS SPECIFY THE NEED FOR A MINIMUM 2-FOOT FREEBOARD TO PREVENT
OVERTOPPING BY WAVES OR RAINFALL. THEREFORE, THE AGENCY IS RETAINING A
2-FOOT MINIMUM FREEBOARD REQUIREMENT.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 051 OF 106
COSTLE D M ADMINISTRATOR
EPA
113415
REGULATION
SOME COMMENTERS SUGGESTED THAT LEVEL CONTROLS (COUPLES WITH NDES
DISCHARGE PERMITS) SHOULD BE ALLOWED INSTEAD OF A MINIMUM FREEBOARD.
THE AGENCY DISAGREES. ANY LEVEL CONTROLS MUST STILL PROVIDE FOR A
MINIMUM FREEBOARD TO PROTECT AGAINST OVERFLOWS RESULTING FROM BREAKDOWNS
IN LEVEL CONTROL EQUIPMENT, OPERATOR ERRORS, WAVES, AND SIGNIFICANT
RAINFALL. IN ADDITION, SINCE THE AGENCY HAS DELETED THE PHRASE "AVERAGE
MAXIMUM" FROM THE PROPOSED DEFINITION OF FREEBOARD, THE REGULATION NOW
REQUIRES 2 FEET OF FREEBOARD AT ALL TIMES DURING NORMAL OPERATION.
3. CONTAINMENT SYSTEM. THE PROPOSED GENERAL REGULATIONS REQUIRED
ALL EARTHEN DIKES TO HAVE AN OUTSIDE PROTECTIVE COVER TO MINIMIZE WIND
AND WATER EROSION. THIS REQUIREMENT HAS BEEN ADDED TO THE INTERIM
STATUS STANDARDS. PROTECTIVE COVER FOR EARTHEN DIKES IS CONSIDERED TO
BE STANDARD ENGINEERING PRACTICE, AND MANY IMPOUNDMENTS ALREADY HAVE
SUCH A COVER. THEREFORE, THE AGENCY DOES NOT BELIEVE THAT A SUBSTANTIAL
CAPITAL COST, OR ANY INTERACTION WITH THE REGIONAL ADMINISTRATOR, WILL
BE NECESSITATED BY THIS REQUIREMENT. THE SOLE COMMENT ON THIS SECTION
STATED THAT THE PURPOSE OF PROTECTIVE COVER, THE PRESERVATION OF THE
STRUCTURAL INTEGRITY OF THE IMPOUNDMENT, SHOULD BE NOTED IN THE
REGULATION, EPA AGREES AND HAS DONE SO.
4. WASTE ANALYSIS AND RECORDKEEPING. WASTE ANALYSIS REQUIREMENTS
WERE NOT INCLUDED IN THE PROPOSED INTERIM STATUS STANDARDS BUT WERE
PROPOSED AS REQUIREMENTS IN THE GENERAL STANDARDS WHICH APPLIED TO ALL
FACILITIES. HOWEVER, THE FINAL INTERIM STATUS STANDARDS CONTAIN GENERAL
WASTE ANALYSIS REQUIREMENTS IN SUBPART B, AND IN ADDITION, INCLUDE
SPECIFIC REQUIREMENTS FOR WASTE ANALYSIS IN THE STANDARDS FOR SURFACE
IMPOUNDMENTS. SINCE THESE STANDARDS ARE ESSENTIALLY IDENTICAL TO THOSE
FOR TANKS AND CHEMICAL, PHYSICAL, AND BIOLOGICAL TREATMENT FACILITIES,
THEY ARE DISCUSSED IN THE SECTION ON TANKS (SUBPART J).
THE PROPOSED INTERIM STATUS STANDARDS REQUIRED THAT THE OWNER OR
OPERATOR KEEP RECORDS OF THE CONTENTS AND LOCATION OF EACH SURFACE
IMPOUNDMENT. THIS INFORMATION WILL REDUCE THE PROBABILITY OF ACCIDENTAL
MIXING OF INCOMPATIBLE WASTES, AID IN RESOLVING DAMAGE INCIDENTS, AND
ASSIST IN DETERMINING PROPER CLOSURE PROCEDURES. BECAUSE ALL HAZARDOUS
WASTE FACILITIES MUST KEEP RECORDS ON THE TYPES AND PLACEMENT OF WASTES,
THE RECORDKEEPING REQUIREMENTS FOR SURFACE IMPOUNDMENTS ARE INCLUDED IN
THE GENERAL RECORDKEEPING REQUIREMENTS FOR ALL FACILITIES UNDER SUBPART
E.
5. INSPECTIONS. THE PROPOSED INTERIM STATUS STANDARDS REQUIRED THAT
SURFACE IMPOUNDMENT DIKES BE INSPECTED DAILY IN ORDER TO DETECT AND
CORRECT ANY DETERIORATION OF THE DIKES. THIS RULE WAS INTENDED TO
MINIMIZE THE POSSIBILITY OF DIKE FAILURE.
COMMENTS SUPPORTED THE NEED FOR INSPECTIONS, BUT RECOMMENDED THAT
THEY BE CONDUCTED LESS FREQUENTLY.
COMMENTERS ARGUES THAT DIKE FAILURE IS A LONG-TERM EVENT THAT CAN BE
DETECTED WITH LESS FREQUENT INSPECTIONS, AND THAT DAILY INSPECTIONS
WOULD MOST LIKELY BE PERFORMED IN A CURSORY MANNER. MOST OF THE
COMMENTERS RECOMMENDED WEEKLY, BI-WEEKLY, OR MONTHLY INSPECTIONS.
THE AGENCY AGREES THAT INSPECTIONS ON A WEEKLY BASIS ARE GENERALLY
SUFFICIENT TO DETECT CRACKS, EROSION, AND OTHER DETERIORATION IN A DIKE
WELL IN ADVANCE OF DIKE FAILURE. THEY SHOULD ALSO NOT IMPOSE A LARGE
BURDEN ON THE OWNER OR OPERATOR. ADDITIONAL INSPECTION MAY BE PRUDENT
DURING OR AFTER AN UNUSUAL RAINFALL, AND SHOULD BE CONSIDERED BY THE
OWNER OR OPERATOR IN THE INSPECTION SCHEDULE REQUIRED BY SECTION 265.15.
ON A ROUTINE BASIS, HOWEVER, WEEKLY INSPECTIONS OF THE SURFACE
IMPOUNDMENT, PARTICULARLY FOR CRACKS OR LEAKS IN DIKES, REPRESENTS THE
BEST BALANCE BETWEEN NEED AND PRACTICALITY.
THE PROPOSED REGULATIONS ALSO REQUIRED A DAILY INSPECTION OF ANY
EXISTING SYSTEM USED FOR DETECTING THE FAILURE OF A LINER SYSTEM OR
NATURAL SOIL BARRIER. THIS WOULD ENSURE THE TIMELY DETECTION OF A
FAILURE OF A LINER SYSTEM OR NATURAL SOIL BARRIER. THIS WOULD ENSURE
THE TIMELY DETECTION OF A FAILURE OF THE IMPOUNDMENT LINER SYSTEM. THIS
REQUIREMENT HAS BEEN SUBSUMED IN THE GENERAL INSPECTION REQUIREMENTS IN
SECTION 265.15(B); THE REQUIREMENT FOR DAILY INSPECTION HAS BEEN
REPLACED BY A REQUIREMENT THAT THE OWNER OR OPERATOR DEVELOP HIS OWN
SCHEDULE.
THE AGENCY BELIEVES THAT WHEN SURFACE IMPOUNDMENTS ARE IN OPERATION,
THERE MAY BE SIGNIFICANT DAILY FLUCTUATIONS IN THE LEVEL OF THE WASTES.
THIS POTENTIAL DAILY FLUCTUATION COULD SUBSTANTIALLY REDUCE THE AMOUNT
OF APPROPRIATE FREEBOARD NEEDED TO PREVENT OVERTOPPING, AND
LESS-THAN-DAILY INSPECTION WOULD NOT BE SAFE IN SOME INSTANCES.
MOREOVER, THIS INSPECTION IS USUALLY QUITE SIMPLE. CONSEQUENTLY, DAILY
INSPECTION OF FREEBOARD IS REQUIRED.
6. CLOSURE AND POST-CLOSURE. THE PROPOSED INTERIM STATUS
REGULATIONS REQUIRED THAT UPON CLOSURE, ALL HAZARDOUS WASTE AND RESIDUES
WERE TO BE REMOVED FROM A SURFACE IMPOUNDMENT AND DISPOSED OF AS A
HAZARDOUS WASTE, UNLESS THE IMPOUNDMENT MET THE PROPOSED SECTION
250.45-2 REQUIREMENTS FOR LANDFILLS AND CLOSED ACCORDING TO THE LANDFILL
CLOSURE REQUIREMENTS. THE PROPOSED REGULATION WAS READ BY MANY
COMMENTERS TO ALLOW EXISTING SURFACE IMPOUNDMENTS TO CLOSE AS LANDFILLS
UNDER INTERIM STATUS ONLY IF THEY MET THE PROPOSED GENERAL STANDARDS FOR
DESIGN AND CONSTRUCTION OF LANDFILLS AS WELL AS THE STANDARDS FOR
CLOSURE. UNDERSTANDABLY, THIS DREW STRONG OBJECTIONS. SUCH A
REQUIREMENT WAS NOT APPLIED TO LANDFILLS CLOSING UNDER INTERIM STATUS,
AND IT WAS NOT INTENDED TO BE EXTENDED TO SURFACE IMPOUNDMENTS.
ALTHOUGH IT WAS NOT WELL REFLECTED IN THE TEXT OF THE PROPOSED
REGULATION, THE AGENCY'S INTENT WAS TO REQUIRE SURFACE IMPOUNDMENTS
CLOSING UNDER INTERIM STATUS AS LANDFILLS TO MEET ONLY THE INTERIM
STATUS REQUIREMENTS FOR CLOSURE OF LANDFILLS, THAT IS, THE CLOSURE AND
POST-CLOSURE CARE REQUIREMENTS FOR LANDFILLS. THE PRESENT REGULATIONS
HAVE BEEN RESTRUCTURED ALONG THESE LINES.
IN RESPONSE TO COMMENTS, THE PRESENT REGULATIONS ALSO ALLOW MORE
FLEXIBILITY THAN THE PROPOSED INTERIM STATUS STANDARDS. IF THE OWNER OR
OPERATOR ELECTS TO AVOID CLOSING AS A LANDFILL, ALL HAZARDOUS WASTES AND
HAZARDOUS RESIDUES MUST BE REMOVED FROM THE SURFACE IMPOUNDMENT,
INCLUDING (UNLESS HE CAN SHOW THAT THEY ARE NON-HAZARDOUS) THE
IMPOUNDMENT LINER (IF ANY) AND UNDERLYING AND SURROUNDING CONTAMINATED
SOIL. THE CHOICE WHETHER TO REMOVE THESE MATERIALS OR TO CLOSE AS A
LANDFILL IS UP TO THE OWNER OR OPERATOR (SUBJECT TO THE APPROVAL OF THE
REGIONAL ADMINISTRATOR UNDER SUBPART G). IN ADDITION, THE OWNER OR
OPERATOR MAY CHOOSE TO REMOVE ONLY PART OF THE HAZARDOUS MATERIALS AND
THEN CLOSE AS A LANDFILL. AS A COMMENT TO THE REGULATION POINTS OUT,
THE DETAILED REQUIREMENTS FOR LANDFILL CLOSURE MAY THEN BE SUBSTANTIALLY
REDUCED, BECAUSE THEY DEPEND ON THE AMOUNT AND NATURE OF THE HAZARDOUS
MATERIALS REMAINING, ALONG WITH SEVERAL OTHER FACTORS. THE REGIONAL
ADMINISTRATOR MAY ALSO ADJUST THE POST-CLOSURE CARE REQUIREMENTS AS
APPROPRIATE FOR THE PARTICULAR FACILITY. THE PURPOSE OF THIS APPROACH
IS TO PROVIDE THE OWNER OR OPERATOR WITH A WIDE CHOICE OF ALTERNATIVES,
WHILE STILL ASSURING ADEQUATE PROTECTION OF HUMAN HEALTH AND THE
ENVIRONMENT FROM ANY HAZARDOUS WASTES REMAINING IN THE IMPOUNDMENT AFTER
CLOSURE.
THE OWNER OR OPERATOR'S CHOICE OF CLOSURE PLANS MAY DEPEND, IN
SUBSTANTIAL PART, ON JUST HOW MUCH MATERIAL WILL HAVE TO BE REMOVED FROM
THE IMPOUNDMENT. THE DETERMINATION OF THE AMOUNT OF MATERIAL TO BE
REMOVED WILL BE A FUNCTION OF THE AMOUNT AND MOBILITY OF THE REMAINING
HAZARDOUS WASTES, JUDGMENTS AS TO THE PRECISE NATURE OF THE COVER
NEEDED, AND THE POST-CLOSURE CARE REQUIRED. THE DETERMINATIONS FOR
CLOSURE ARE ULTIMATELY SUGJECT TO THE APPROVAL OF THE REGIONAL
ADMINISTRATOR.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 052 OF 106
COSTLE D M ADMINISTRATOR
EPA
113416
REGULATION
IN MAKING THIS JUDGMENT, THE REGIONAL ADMINISTRATOR MAY REQUIRE TESTS
OF RESIDUES OR CONTAMINATED SOIL TO BE MADE BY THE OWNER OR OPERATOR.
FOR THESE REASONS, IT MAY BENEFIT THE OWNER OR OPERATOR OF A SURFACE
IMPOUNDMENT TO SUBMIT A CLOSURE PLAN TO THE REGIONAL ADMINISTRATOR
SUBSTANTIALLY MORE THAN 180 DAYS BEFORE THE TARGET DATE FOR THE
INITIATION OF CLOSURE ACTIVITIES. IN ADDITION, OWNERS AND OPERATORS ARE
DISCOURAGED FROM PENETRATING SURFACE IMPOUNDMENT LINERS IN ORDER TO
SAMPLE AND ANALYZE UNDERLYING SOIL FOR CONTAMINATION, UNLESS PRIOR
DISCUSSIONS WITH THE REGIONAL ADMINISTRATOR CONFIRM THE DESIRABILITY OF
THIS STEP. LINER PENETRATION COULD GREATLY INCREASE LEAKAGE OF
HAZARDOUS WASTE INTO THE UNDERLYING SOIL.
A MAJOR REQUIREMENT FOR AN IMPOUNDMENT TO BE CLOSED AS A LANDFILL IS
THAT THE WASTE WHICH REMAINS IN THE IMPOUNDMENT MUST BE CAPABLE OF
SUPPORTING THE FINAL COVER. THIS MAY BE ACCOMPLISHED BY A COMBINATION
OF REMOVING WASTES (E.G., THE LIQUID PORTION) AND TREATING THE RESIDUES
(E.G., FURTHER DEWATERING, EVAOPRATION, OR CHEMICALLY STABLIZING OR
SOLIDIFYING THE RESIDUES).
EPA BELIEVES THAT THESE REGULATIONS SATISFY MANY OF THE CONCERNS
RAISED IN THE COMMENTS TO THE PROPOSED INTERIM STATUS STANDARDS. THOSE
COMMENTS STATED THAT THE SURFACE IMPOUNDMENT CLOSURE REQUIREMENTS WERE
IMPROPERLY RESTRICTIVE, THAT IT MIGHT IN SOME INSTANCES BE PREFERABLE TO
LEAVE THE WASTE IN PLACE THAN TO MOVE IT, AND THAT THE REQUIREMENT FOR
INERT FILL WAS UNNECESSARY THESE REGULATIONS PROVIDE FLEXIBILITY FOR
CLOSURE REQUIREMENTS AND ALLOW THE WASTES TO BE LEFT IN PLACE. THE
REQUIREMENT SPECIFYING THE USE OF INERT MATERIAL FOR FILL HAS BEEN
DELETED. COMMENTS ON THE GENERAL STANDARDS WILL BE DEALT WITH WHEN
THOSE STANDARDS ARE PROMULGATED.
BECAUSE THE LANDFILL CLOSURE REQUIREMENTS, ON WHICH THE SURFACE
IMPOUNDMENT CLOSURE REQUIREMENTS ARE BASED, HAVE BEEN SUBSTANTIALLY
MODIFIED AND BECAUSE THERE WAS SOME CONFUSION SURROUNDING THE SURFACE
IMPOUNDMENT CLOSURE REQUIREMENTS PROPOSED FOR INTERIM STATUS, THIS
REGULATION IS BEING PROMULGATED INTERIM FINAL, AND THE AGENCY IS
SOLICITING COMMENTS ON IT. THE AGENCY IS ESPECIALLY INTERESTED IN
RECEIVING COMMENTS ON (1) WHETHER THE PRESENT LANDFILL CLOSURE AND
POST-CLOSURE CARE REQUIREMENTS NEED TO BE MODIFIED AS THEY APPLY TO
SURFACE IMPOUNDMENTS, AND (2) THE NUMBER, SIZE, AND OTHER
CHARACTERISTICS OF SURFACE IMPOUNDMENTS FROM WHICH OPERATORS MIGHT OPT
TO REMOVAL SOME OR ALL OF THE HAZARDOUS WASTES, RESIDUES AND OTHER
CONTAMINATED MATERIALS DURING CLOSURE.
7. IGNITABLE, REACTIVE, OR INCOMPATIBLE WASTES. THIS TOPIC WAS
PREVIOUSLY DISCUSSED IN THE GENERAL SECTION OF THE SAME TITLE WHICH
SUPPLIES THE RATIONALE FOR THE REGULATION OF THESE WASTES IN SURFACE
IMPOUNDMENTS.
THE ISSUE OF VOLATILITY HAS BEEN DEFERRED UNTIL MORE DATA IS GATHERED
(SEE DISCUSSION OF "VOLATILITY"), IN THE MEANTIME, IT MUST BE EMPHASIZED
THAT EPA DOES NOT CONDONE THE ADDITION OF VOLATILE HAZARDOUS WASTE
CONSTITUENTS TO SURFACE IMPOUNDMENTS.
SEVERAL COMMENTERS REQUESTED THAT DURING EMERGENCIES THEY BE
PERMITTED TO PLACE IGNITABLE WASTES, SUCH AS PETROLEUM PRODUCTS, IN
SURFACE IMPOUNDMENTS USED SOLELY FOR EMERGENCIES. THE REGULATION NOW
PERMITS THIS, AND A SIMILAR PROVISION HAS BEEN MADE IN THE TANK
REGULATIONS. FURTHERMORE, THE SECTION ON IGNITABLE OR REACTIVE WASTES
IS NOT INTENDED TO COVER STORMWATER COLLECTION AND TREATMENT PONDS SUCH
AS THOSE AT PETROLEUM REFINERIES, WHEN THEY RECEIVE INCIDENTAL AMOUNTS
OF OILY MATERIAL IN OTHERWISE NON-CONTAMINATED RUN-OFF.
THERE WERE NO REGULATIONS CONCERNING THE STORAGE OF HAZARDOUS WASTE
IN PILES IN THE PROPOSED REGULATIONS BECAUSE THE PROPOSED RULES REQUIRED
THAT WASTES BE STORED IN COVERED CONTAINERS OR TANKS. THE WASTE PILES
THE AGENCY WAS AWARE OF WERE GENERALLY USED FOR DISPOSAL AND WERE LARGE
ENOUGH TO BE PROPERLY MANAGED AS LANDFILLS. THE FINAL REGULATIONS STILL
REQUIRE THAT HAZARDOUS WASTE DISPOSED OF IN PILES BE MANAGED AS A
LANDFILL. HOWEVER, AT PUBLIC HEARINGS DURING THE COMMENT PERIOD ON THE
PROPOSED REGULATIONS, THE AGENCY BECAME AWARE THAT HAZARDOUS WASTES ARE
OCCASIONALLY STORED IN PILES FOR WHICH THE LANDFILL REGULATIONS ARE
INAPPROPRIATE. COMMENTS AT THE HEARINGS INDICATED THAT SUCH PILES ARE
GENERALLY SMALL, FREQUENTLY LESS THAN 3 METERS HIGH. MANY ARE IN
BUILDINGS OR MAINTAINED OUTSIDE ON CONCRETE OR OTHER PADS. THEY ARE
FREQUENTLY USED TO ACCUMULATE WASTE BEFORE SHIPMENT, TREATMENT, OR
DISPOSAL, AND ARE TYPICALLY COMPOSED OF A SINGLE DRY MATERIAL.
THE REGULATIONS IN THIS SUBPART ARE DRAWN PARTLY FROM THE LANDFILL
REGULATIONS (SUBPART N) AND PARTLY FROM ANALOGY TO THE STORAGE
REGULATIONS FOR TANKS. SINCE NONE OF THE WRITTEN COMMENTS GAVE DETAILS
ON HOW STORAGE PILES SHOULD BE REGULATED, THESE REGULATIONS ARE FOUNDED
LARGELY ON THE DESCRIPTIONS OF STORAGE PILES GIVEN AT PUBLIC HEARINGS.
BECAUSE NONE OF THESE REGULATIONS WERE PROPOSED AS THEY RELATE TO
STORAGE PILES, THEY ARE BEING PROMULGATED INTERIM FINAL, AND THE AGENCY
ESPECIALLY SOLICITS COMMENT ON THEM.
1. PROTECTION FROM WIND, BECAUSE MANY PILES ARE COMPOSED OF DRY,
FINELY-DIVIDED MATERIALS, THEY ARE LIKELY TO BE SUBJECT TO WIND
DISPERSAL. WIND-BLOWN HAZARDOUS WASTE POSES THE OBVIOUS THREAT OF
POLLUTION OF NEARBY LAND AND WATER, AND THE POSSIBILITY OF HUMAN HEALTH
EFFECTS FROM INHALATION OR INGESTION. THE AGENCY IS AWARE OF ONE
INSTANCE WHERE MATERIAL BLOWING FROM A VERY LARGE PILE OF ASBESTOS WASTE
POSED A HEALTH RISK FROM INHALATION. THE INTERIM STATUS REGULATIONS
THEREFORE REQUIRE THAT WASTES PILES CONTAINING A HAZARDOUS WASTE SUBJECT
TO WIND DISPERSAL BE COVERED OR OTHERWISE MANAGED SO THAT WIND DISPERSAL
IS CONTROLLED. PILES INSIDE BUILDINGS ARE ALREADY ADEQUATELY MANAGED
FOR THIS PURPOSE. IN OTHER CASES, THE AGENCY BELIEVES THAT OWNERS AND
OPERATORS ARE IN THE BEST POSITIONTO DEVELOP COST-EFFECTIVE MEASURES TO
CONTROL WIND DISPERSAL OF HAZARDOUS WASTES.
2. WASTE ANALYSIS. THE REQUIREMENTS IN THIS SECTION ARE INTENDED AS
A REFINEMENT OF THE GENERAL REQUIREMENTS FOR WASTE ANALYSIS IN SECTION
265.13. AS THE REGULATION FOR WASTE PILES AND THE COMMENT TO THE
REGULATION INDICATES, THE BASIC PURPOSE OF WASTE ANALYSIS IS TO ASSURE
THAT INCOMPATIBLE WASTES ARE NOT MIXED, AND THAT IGNITABLE OR REACTIVE
WASTES ARE PROTECTED FROM SOURCES OF IGNITION OR REACTION. FACILITIES
WHICH RECEIVE ONLY ONE OR A FEW WASTES WHICH ARE STORED IN PILES
TYPICALLY NEED NOT CONDUCT A VERY SOPHISTICATED ANALYSIS OF INCOMING
WASTES; THE OWNER OR OPERATOR CAN DECIDE, FOR EXAMPLE, WHETHER VISUAL
OBSERVATION OF THE COLOR AND TEXTURE OF THE WASTE WILL MEET THE STANDARD
IN THE REGULATION.
3. CONTAINMENT. BESIDES THE REQUIREMENTS FOR CLOSURE, THE MAJOR
DIFFERENCE IN THE REQUIREMENTS BETWEEN DISPOSAL PILES AND STORAGE PILES
IS THAT THE FORMER MUST HAVE GROUND-WATER MONITORING TO DETECT
CONTAMINATION. IF LEACHATE OR RUN-OFF FROM A PILE IS A HAZARDOUS WASTE,
THEN OWNERS AND OPERATORS OF THE LATTER MUST EITHER PREVENT THE
FORMATION OF LEACHATE AND RUN-OFF OR CONTROL HAZARDOUS LEACHATE AND
RUN-OFF.
IF THE OWNER OR OPERATOR CHOOSES TO PREVENT THE FORMATION OF LEACHATE
AND RUN-OFF, HE MUST PROTECT THE PILE FROM PRECIPITATION AND RUN-ON, AND
MUST NOT PLACE ANY LIQUIDS OR WASTES CONTAINING FREE LIQUIDS ON THE
PILE. (SEE THE PREAMBLE SECTION ON LANDFILLS FOR A DISCUSSION OF FREE
LIDUIDS). PILES KEPT IN BUILDINGS WILL TYPICALLY MEET THIS
REQUIREMENTS.
ALTERNATIVELY, IN ORDER TO CONTROL LEACHATE AND RUN-OFF, THE PILE
MUST BE PLACED ON AN IMPERMEABLE BASE SO THAT LEACHATE AND RUN-OFF CAN
BE COLLECTED, AND RUN-ON MUST BE DIVERTED AWAY FROM THE PILE. THE
COLLECTED LEACHATE AND RUN-OFF MUST BE MANAGED AS A HAZARDOUS WASTE, AND
AN NPDES PERMIT WILL BE REQUIRED IF THE LEACHATE AND RUN-OFF IS
DISCHARGED THROUGH A POINT SOURCE TO WATERS OF THE UNITED STATES.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 053 OF 106
COSTLE D M ADMINISTRATOR
EPA
113417
REGULATION
THE PURPOSE OF THIS REQUIREMENT IS TO PROTECT AGAINST CONTAMINATION
OF GROUND WATER, SURFACE WATER, AND SURROUNDING LAND BY LEACHATE AND
RUN-OFF FROM HAZARDOUS WASTE PILES.
4. CLOSURE. BECAUSE THESE REGULATIONS APPLY TO THE STORAGE OF
HAZARDOUS WASTES, THE DEFINITION OF STORAGE REQUIRES THAT ALL HAZARDOUS
WASTES AND HAZARDOUS RESIDUES MUST BE REMOVED WHEN THE PILE IS CLOSED.
THE DEFINITION OF STORAGE AND THE REGULATIONS IN SUBPART G ALSO REQUIE
THAT HAZARDOUS WASTES AND RESIDUES BE REMOVED FROM THE PILE BASE OR THE
CONTAINMENT STRUCTURE OR OTHER AREA ON WHICH THE PILE SAT, AND FROM ANY
EQUIPMENT OR FACILITY USED TO MANAGE HAZARDOUS LEACHATE OR RUN-OFF FROM
THE PILE. THE CLOSURE PLAN REQUIRED BY SUBPART G MUST ADDRESS THESE
REQUIREMENTS. IN REMOVING HAZARDOUS WASTES OR RESIDUES, THE OWNER OR
OPERATOR BECOMES A GENERATOR OF HAZARDOUS WASTES AND MUST MANAGE THEM IN
ACCORDANCE WITH ALL THE REQUIREMENTS OF PARTS 262, 263, AND 265 OF THESE
REGULATIONS.
5. SPECIAL REQUIREMENTS FOR IGNITABLE OR REACTIVE WASTE. THE
PROBLEMS POSED BY IGNITABLE OR REACTIVE WASTES ARE DISCUSSED ABOVE IN
THE PREAMBLE SECTION ENTITLED "GENERAL REQUIREMENTS FOR IGNITABLE,
REACTIVE, OR INCOMPATIBLE WASTE."
THE FIRST ALTERNATIVE FOR MANAGING IGNITABLE OR REACTIVE WASTE IN
PILES -- AVAILABLE WHEN PILING THE WASTE RENDERS THE WASTE NO LONGER
INGNITABLE OR REACTIVE -- IS THE SAME ALTERNATIVE AVAILABLE FOR MOST
OTHER FORMS OF STORAGE OR DISPOSAL AND IS STRAIGHTFORWARD. THE SECOND
ALTERNATIVE -- PROTECTING THE WASTE FROM ANY MATERIALS OR CONDITIONS
WHICH MAY CAUSE IT TO IGNITE OR REACT -- IS ANALOGOUS TO THE APPROACH
USED FOR TANKS. IT MAY BE PRACTICAL FOR PILES KEPT IN BUILDINGS AND IN
SOME OTHER CIRCUMSTANCES.
6. SPECIAL REQUIREMENTS FOR INCOMPATIBLE WASTES. THESE REQUIREMENTS
ARE SIMILAR TO THE ANALOGOUS REQUIREMENTS FOR CONTAINERS. BECAUSE PILES
PROVIDE LITTLE CONTAINMENT OF THE PILED WASTE, THERE IS A POSSIBILITY
THAT PILED WASTES MAY COMMINGLE WITH OTHER WASTES STORED NEARBY, OR THAT
ADJACENT PILES MAY GROW UNTIL THEY OVERLAP. COMMINGLING OF INCOMPATIBLE
WASTES MUST BE PREVENTED BY SEPARATION OR BY MEANS OF A DIKE, WALL, OR
BERM. IN ADDITION, IF HAZARDOUS WASTES ARE PILED IN THE SAME PLACE THAT
INCOMPATIBLE WASTES WERE PREVIOUSLY PILED, A REASCTION BETWEEN THE NEW
WASTE AND RESIDUES FROM THE PREVIOUS PILE MAY OCCUR. THUS THE AREA MUST
BE DECONTAMINATED SO THAT THE PROSCRIBED REACTIONS DO NOT OCCUR.
(LANDFARMS)
THE AGENCY IS NOW USING THE TERM "LAND TREATMENT FACILITY" IN PLACE
OF "LANDFARM" IN ORDER TO EMPLOY A TERM WHICH MORE ACCURATELY DESCRIBES
THE PURPOSE OF THIS PARTICULAR WASTE MANAGEMENT PRACTICE. THE TERMS
"LANDFARM" AND "LANDFARMING" MISLEADINGLY IMPLY A CONNECTION BETWEEN
HAZARDOUS WASTE DISPOSAL AND CROP PRODUCTION OR SOIL BENEFICIATION. THE
TERM "LAND TREATMENT," IN CONTRAST, IMPLIES THAT THE LAND OR SOIL IS
USED AS A MEDIUM TO TREAT HAZARDOUS WASTE. THIS MEDIUM WHICH IS
REFLECTED IN THE REGULATIONS, IS CONSISTENT WITH THE AGENCY'S PHILOSOPHY
THAT APPLYING HAZARDOUS WASTE TO THE SOIL IS A WASTE MANAGEMENT PRACTICE
RESERVED FOR THOSE WASTE STREAMS THAT CAN BE TREATED IN A SOIL SYSTEM.
THE LIMITATIONS OF THIS WASTE MANAGEMENT PRACTICE ARE EXPLAINED IN MORE
DETAIL LATER. THIS PRACTICE SIMULTANEOUSLY CONSTITUTES TREATMENT AND
DISPOSAL OF HAZARDOUS WASTE.
THE PROPOSED REGULATIONS INCLUDED ONLY THE CLOSURE PORTION OF THE
LANDFARMING REGULAIIONS IN THE INTERIM STATUS STANDARDS. THE AGENCY HAS
DECIDED TO INCLUDE OTHER PORTIONS OF THE REGULATION IN THE INTERIM
STATUS REGULATIONS BECAUSE THEY SERVE IMPORTANT ENVIRONMENTAL
OBJECTIVES, AND GENERALLY MEET THE CRITERIA FOR INCLUSION IN INTERIM
STATUS. IT IS IMPORTANT TO REGULATE CERTAIN ASPECTS OF LAND TREATMENT
DURING THE INTERIM STATUS PERIOD BECAUSE THIS IS A DISPOSAL OPTION THAT
PRESENTS HIGH POTENTIAL RISKS IN THE ABSENCE OF CERTAIN OPERATIONAL
CONTROLS. THESE RISKS ARISE FROM THE FACT THAT LAND TREATMENT INVOLVES
THE DIRECT APPLICATION OF HAZARDOUS WASTES TO THE LAND SURFACE.
TYPICALLY THIS OCCURS IN THE ABSENCE OF THE TYPE OF LINER SYSTEMS
ASSOCIATED WITH LANDFILLS OR SURFACE IMPOUNDMENTS. UNLESS THE PRACTICE
IS CAREFULLY DEFINED AND REGULATED, IRRESPONSIBLE PARTIES MAY TRY TO
CHARACTERIZE INDISCRIMINATE DUMPING OF WASTE AS LAND TREATMENT. IN
ADDITION, LAND TREATMENT FACILITIES MAY BE USED TO GROW FOOD-CHAIN
CROPS. THE AGENCY IS CONCERNED ABOUT THE POTENTIAL FOR HAZARDOUS WASTE
CONSTITUENTS TO ENTER THE HUMAN FOOD CHAIN AS A RESULT OF THIS PRACTICE.
SINCE UNDER CERTAIN CONDITIONS CROPS MAY BE GROWN ON SUCH SITES DURING
INTERIM STATUS, IT IS IMPORTANT TO ADDRESS THIS CONCERN DURING THE
INTERIM STATUS PERIOD.
MONITORING REQUIREMENTS HAVE ALSO BEEN INCLUDED IN THE INTERIM STATUS
STANDARDS BECAUSE THE AGENCY BELIEVES MONITORING IS SUCH AN ESSENTIAL
FIRST STEP IN THE REGULATION OF HAZARDOUS WASTE DISPOSAL. SUCH
MONITORING WILL ALSO BE A PART OF ANY FINAL PHASE II REGULATIONS.
OWNERS AND OPERATORS OF LAND TREATMENT FACILITIES, HOWEVER, MUST BEGIN
TO INSTALL UNSATURATED ZONE MONITORING SYSTEMS AND BEING TO ESTABLISH
BACKGROUND LEVELS OF VARIOUS PARAMETERS NOW SO THAT THEY WILL BE IN A
POSITION TO MEET THE TREATMENT, GROUND-WATER, AND FOOD-CHAIN CROP
PROTECTION STANDARDS.
1. PURPOSE OF TREATMENT. IN SECTION 260.10 OF THE REGULATIONS
ISSUED TODAY A LAND TREATMENT FACILITY IS DEFINED AS "THAT PART OF A
FACILITY AT WHICH HAZARDOUS WASTE IS APPLIED ONTO OR INCORPORATED INTO
THE SOIL SURFACE," OPERATORS OF LAND TREATMENT FACILITIES GENERALLY
APPLY THE WASTE IN THIN LAYERS AND USE COMMON FARM PRACTICES SUCH AS
TILLING, CONTOURING, AND EROSION CONTROL TECHNIQUES. THEY MAY ALSO ADD
NITROGEN AND PHOSPORUS FERTILIZERS TO ENHANCE MICROBIAL DEGRADATION OF
THE WASTE. THE GENERAL OBJECTIVE OF LAND TREATMENT IS THE MICROBIAL
DEGRADATION OF ORGANIC WASTE CONSTITUENTS. COMPARED TO THE MORE
CONVENTIONAL METHODS OF DISPOSING OF WASTE IN LANDFILLS AND SURFACE
IMPOUNDMENTS THIS PRACTICE IS RELATIVELY NEW. IT IS USED PRIMARILY TO
TREAT OILY WASTES, BUT MAY BE FEASIBLE FOR OTHER TYPES OF WASTES.
WHILE EPA DOES NOT WISH TO RULE OUT THE LEGITIMATE USE OF THIS WASTE
MANAGEMENT OPTION, THERE ARE CERTAIN INHERENT RISKS WITH THIS PRACTICE
WHICH MAKE CAREFUL REGULATION NECESSARY. ONE OF THE KEY ELEMENTS IN
THESE REGULATIONS THAT WILL MINIMIZE SUCH RISKS IS A CLEAR SPECIFICATION
OF THE PURPOSE OF LAND TREATMENT. IN DOING THIS, THE AGENCY HOPES TO
PREVENT THE SITUATION WHERE IRRESPONSIBLE PARTIES MAY CLAIM THAT THEIR
INDISCRIMINATE DUMPING OF WASTE IS LAND TREATMENT. EPA BELIEVES THAT
THE ONLY LEGITIMATE PURPOSE FOR THE LAND TREATMENT OF HAZARDOUS WASTES
IS TO TREAT THE WASTE TO REDUCE ITS HAZARDOUS PROPERTIES. THIS
REDUCTION OCCURS THROUGH BIOLOGICAL DEGRADATION OR CHEMICAL REACTIONS IN
THE SOIL THAT ALTER THE CHEMICAL STATE OF THE WASTE.
THE AGENCY ACKNOWLEDGES THAT SOIL HAS THE CAPACITY TO EFFECTIVELY
FILTER AND DILUTE WASTE. HOWEVER, THESE PHYSICAL MECHANISMS PROVIDE
LITTLE OR NO NET REDUCTION IN HAZARD IF THEY DO NOT LATER THE CHEMICAL
STATE OF THE WASTE. CONSEQUENTLY, THE USE OF THE SOIL SOLELY AS A
FILTRATION OR DILUTION MEDIUM IS NOT CONSIDERED APPROPRIATE FOR LAND
TREATMENT. IN ADDITION, ANY BENEFIT DERIVED FROM LAND TREATING
HAZARDOUS WASTE, BEYOND THAT OF THE TREATMENT ITSELF, IS CONSIDERED TO
BE INCIDENTAL, AND NOT AN APPROPRIATE JUSTIFICATION FOR PERMITTING THE
PRACTICE. CONSEQUENTLY, LAND TREATMENT OF HAZARDOUS WASTE MERELY FOR
THE PURPOSE OF PROVIDING NUTRIENTS TO CROPS IS NOT CONSIDERED AN
ACCEPTABLE PRACTICE UNDER THESE REGULATIONS.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 054 OF 106
COSTLE D M ADMINISTRATOR
EPA
113418
REGULATION
BASED ON THE AGENCY'S INTERPRETATION OF THE PURPOSE OF LAND
TREATMENT, THE REGULATION SPECIFIES THAT HAZARDOUS WASTES MUST NOT BE
PLACED IN OR ON LAND TREATMENT FACILITIES UNLESS THE OWNER OR OPERATOR
CAN DEMONSTRATE THAT BIOLOGICAL DEGRADATION OR CHEMICAL REACTIONS IN THE
SOIL WILL MAKE THE WASTE LESS HAZARDOUS OR NON-HAZARDOUS. THE
MONITORING REQUIREMENTS SPECIFIED IN THE REGULATION WILL ASSIST THE
OWNER OR OPERATOR IN CONFIRMING THAT DETERMINATION. THE OWNER OR
OPERATOR MUST BE ABLE TO DEMONSTRATE THAT THE TREATMENT REQUIREMENT IS
BEING MET AT THE FACILITY. CONTINUED LAND TREATMENT WITHOUT THE ABILITY
TO MAKE THAT DEMONSTRATION IS A VIOLATION OF THESE REGULATIONS.
2. SURFACE WATER RUN-ON AND CONTAMINATED RUN-OFF. THE AGENCY HAS
DECIDED THAT THE TERM "RUN-OFF", AS USED IN THE PROPOSED REGULATION
CONCERNING THE CONSTRUCTION OF "DIVERSION STRUCTURES TO DIVERT ALL
SURFACE WATER RUN-OFF FROM THE ACTIVE PORTIONS OF A FACILITY," WAS
CONFUSING. THEREFORE THE TERM "RUN-ON" HAS REPLACED THE TERM "RUN-OFF"
IN THESE SITUATIONS. HTAT IS, AS USED IN THESE REGULATIONS, RUN-ON IS
WATER WHICH RUNS ONTO THE ACTIVE PORTIONS OF A LAND TREATMENT FACILITY
OR LANDFILL FROM OTHER PORTIONS OF THE FACILITY OR FROM OUTSIDE OF THE
FACILITY. FUN-OFF IS NOW DEFINED AS RAINWATER, LEACHATE, OR OTHER
LIQUID WHICH FLOWS FROM THE ACTIVE PORTIONS OF A DISPOSAL FACILITY.
REQUIREMENTS FOR CONTROL OF SURFACE WATER RUN-OFF AND RUN-ON WERE NOT
INCLUDED IN THE PROPOSED INTERIM STATUS STANDARDS FOR LAND TREATMENT
FACILITIES. HOWEVER, THOSE REQUIREMENTS WERE SPECIFIED IN THE PROPOSED
GENERAL STANDARDS IN SECTION 250.43 (B) AND (C). THOSE REGULATIONS
REQUIRED THE OWNER OR OPERATOR TO CONSTRUCT DIVERSION STRUCTURES CAPABLE
OF PREVENTING RUN-ON FROM ENTERING A LAND TREATMENT FACILITY. A
VARIANCE TO THIS REQUIREMENT WAS ALLOWED WHERE AN OWNER OR OPERATOR
COULD DEMONSTRATE TO THE REGIONAL ADMINISTRATOR THAT RUN-ON WOULD NOT
ENTER THE SITE AND COME IN CONTACT WITH THE HAZARDOUS WASTE. TEH
PROPOSED REGULATIONS ALSO REQUIRED THE OWNER OR OPERATOR TO COLLECT AND
CONFINE RUN-OFF FROM ACTIVE PORTIONS OF THE FACILITY TO A POINT SOURCE
BEFORE DISCHARGE OR TREATMENT.
IN THESE INTERIM STATUS REGULATIONS LAND TREATMENT FACILITIES WILL BE
SUBJECT TO THE SAME REQUIREMENTS AS LANDFILLS REGARDING SURFACE RUN-ON
AND RUN-OFF. RUN-ON MUST BE DIVERTED AWAY FROM THE ACTIVE PORTIONS OF
THE LAND TREATMENT FACILITY. RUN-OFF FROM THE ACTIVE PORTIONS MUST BE
COLLECTED. IF THE COLLECTED RUN-OFF IS A HAZARDOUS WASTE IT MUST BE
MANAGED AS A HAZARDOUS WASTE. IF IT IS NOT A HAZARDOUS WASTE IF MAY
STILL NEED TO BE ANALYZED, TREATED, OR OTHERWISE MANAGED TO COMPLY WITH
SUBTITLE D OF RCRA OR THE CLEAN WATER ACT. FOR A MORE SPECIFIC
DESCRIPTION OF THESE REQUIREMENTS SEE THE "LANDFILL" PORTION OF THIS
PREAMBLE.
THE AGENCY ACKNOWLEDGES THAT THE SURFACE AREA OF THE ACTIVE PORTIONS
OF A LAND TREATMENT FACILITY WILL GENERALYY BE LARGER THAN THE SURFACE
AREA OF THE ACTIVE PORTIONS OF A LANDFILL. THIS WILL NECESSITATE MORE
EXTENSIVE RUN-ON DIVERSION STRUCTURES AND RUN-OFF COLLECTION SYSTEMS FOR
LAND TREATMENT FACILITIES. EPA BELIEVES, HOWEVER, THAT SUCH CONTROLS
ARE NECESSARY AT LAND TREATMENT FACILITIES BECAUSE THIS DISPOSAL OPTION
INVOLVES THE PLACEMENT OF HAZARDOUS WASTE ON, OR BARELY UNDER, THE
SURFACE OF THE LAND. SUCH A TECHNIQUE PRESENTS A SUBSTANTIAL RISK THAT
HAZARDOUS WASTE OR HAZARDOUS WASTE CONSTITUENTS WILL BE CARRIED OFF THE
SITE BY SURFACE WATER RUN-OFF. A 12 MONTH DELAY FOR RUN ON AND RUN-OFF
CONTROL COMPLIANCE IS ALLOWED IN THESE REGULATIONS. SEE FURTHER
DISCUSSION UNDER "LANDFILLS".
3. RECORDKEEPING. UNDER THE INTERIM STATUS REGULATIONS OWNERS AND
OPERATORS OF LAND TREATMENT FACILITIES MUST ENSURE THAT THE APPLICATION
DATES, THE APPLICATION RATES, THE QUANTITIES, THE RESULTS OF WASTE
ANALYSES, AND THE LOCATION OF EACH HAZARDOUS WASTE PLACED IN THE
FACILITY IS IN THE OPERATING RECORD REQUIRED UNDER SECTION 265.73. SUCH
RECORDKEEPING IS NEEDED TO ALLOW THE OWNER OR OPERATOR AND THE REGIONAL
ADMINISTRATOR TO EVALUATE THE FACILITY'S COMPLIANCE WITH THE OTHER
REQUIREMENTS OF THIS SUBPART. FOR EXAMPLE, THE WASTE ANALYSES, THE
APPLICATION RATES, AND QUANTITIES OF HAZARDOUS WASTES PLACED IN THE
FACILITY WILL ASSIST, THROUGH THE USE OF A MASS-BALANCE ANALYSIS, IN
DETERMINING WHETHER THE TREATMENT OBJECTIVE OF THE FACILITY IS BEING
MET. INFORMATION ON APPLICATION DATES AND LOCATIONS WILL ASSIST IN
DETERMINING WHETHER THE UNSATURATED ZONE MONITORING SYSTEM IS PROPERLY
DESIGNED TO DETECT MIGRATION OF HAZARDOUS WASTE AND HAZARDOUS WASTE
CONSTITUENTS.
4. WASTE ANALYSIS. THE PROPOSED REGULATIONS CONTAINED GENERAL WASTE
ANALYSIS REQUIREMENTS WHICH APPLIED TO ALL FACILITIES. THE GENERAL
WASTE ANALYSIS REGULATIONS IN THESE FINAL INTERIM STATUS REGULATIONS
REQUIRE WASTE ANALYSIS AS IS NECESSARY TO COMPLY WITH THE REGULATIONS,
INCLUDING THE LAND TREATMENT STANDARDS. OWNERS OR OPERATORS OF LAND
TREATMENT FACILITIES MUST FURTHER ANALYZE WASTE FOR THE HAZARDOUS WASTE
CONSTITUENTS WHICH CAUSED THE WASTE TO BE LISTED, IF IT IS LISTED, AND
THE CONSTITUENTS WHICH EXCEED THE LEVELS SPECIFIED IN TABLE 1 OF SECTION
261.24 OF THIS CHAPTER. SUCH INFORMATION WILL BE ESSENTIAL TO A
DEMONSTRATION THAT THE WASTE IS BEING MADE LESS HAZARDOUS AT THE
FACILITY AND WILL BE RELEVANT TO BOTH THE GROUND-WATER AND
FOOD-CHAIN-CROP PROTECTION GOALS OF THIS SUBPART.
IF FOOD-CHAIN CROPS ARE GROWN, THE WASTE MUST BE ANALYZED FOR
ARSENIC, CADMIUM, LEAD, AND MERCURY. THE OWNER OR OPERATOR NEED NOT
TEST FOR EACH OF THESE ELEMENTS IF HE HAS WRITTEN INFORMATION TO
INDICATE THAT THE CONSTITUENT IS NOT IN THE WASTE.
5. MONITORING. THE PROPOSED REGULATION REQUIRED SEMI-ANNUAL SOIL
MONITORING OF THE TREATED AREA OF A LAND TREATMENT FACILITY. THIS WAS
TO BE ACCOMPLISHED BY TAKING ONE SOIL CORE PER ACRE TO A DEPTH OF THREE
TIMES THE ZONE OF INCORPORATION (I.E., THREE TIMES THE DEPTH TO WHICH
THE W ASTE WAS TILLED INTO THE SOIL). IF MIGRATION WAS DETECTED, AS
INDICATED BY AN INCREASE IN WASTE CONSTITUENTS OVER BACKGROUND LEVELS IN
THE BOTTOM ONE-THIRD OF THE CORE, THE OWNER OR OPERATOR WAS TO NOTIFY
THE REGIONAL ADMINISTRATOR AND CEASE OPERATION IN THE AFFECTED AREA
UNTIL CORRECTIVE ACTIONS COULD BE TAKEN. IN CONTRAST WITH LANDFILLS AND
SURFACE IMPOUNDMENTS, THE PROPOSED REGULATIONS DID NOT SPECIFY
GROUND-WATER MONITORING FOR LAND TREATMENT FACILITIES. THE
ENVIRONMENTAL PERFORMANCE OF A LAND TREATMENT FACILITY WAS TO BE
EVALUATED SOLELY ON THE BASIS OF SOIL MONITORING. BECAUSE OF THIS
DIFFERENCE, THE AGENCY SOLICITED INFORMATION ON THE DESIRABILITY OF
GROUND-WATER MONITORING AT LAND TREATMENT FACILITIES. THE AGENCY
SUGGESTED THAT SOIL MONITORING WOULD DETECT MIGRATION OF WASTE
CONSTITUENTS LONG BEFORE GROUND-WATER MONITORING WOULD.
EPA RECEIVED SEVERAL COMMENTS SUGGESTING THAT GROUND-WATER MONITORING
IN ADDITION TO SOIL MONITORING WAS UNNECESARRY. OTHER COMMENTERS,
HOWEVER, EXPRESSED THE OPINION THAT GROUND WATER MONITORING WAS ALSO
NECESSARY. THESE COMMENTERS CLAIMED THAT SOIL MONITORING HAS CERTAIN
LIMITATIONS SUCH AS ITS LACK OF RELIABILITY FOR DETECTING HIGHLY MOBILE
CONTAMINANTS. THEY ARGUED THAT SOIL MONITORING "SHOULD NOT BE SOLELY
RELIED UPON TO PROVIDE PROTECTION OF OUR GROUND-WATER RESOURCES."
COMMENTERS ALSO WERE SPECIFICALLY CONCERNED ABOUT THE SAMPLING
PROCEDURES, THE STANDARD FOR WHEN THE TREATMENT SYSTEM HAD FAILED, AND
THE CORRECTIVE ACTION THAT WAS TO FOLLOW DETECTION OF A FAILURE. THE
REQUIREMENT TO ANALYZE EACH SOIL CORE FOR THOSE CONSTITUENTS IN THE
WASTE WHICH MADE IT HAZARDOUS WAS CONSIDERED EXTREME AND IMPRACTICAL.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 055 OF 106
COSTLE D M ADMINISTRATOR
EPA
113419
REGULATION
COMMENTERS SUGGESTED THAT INDICATOR SUBSTANCES BE ANALYZED INSTEAD.
COMMENTERS ALSO CHALLENGED THE "THREE-TIMES THE ZONE OF INCORPORATION"
TEST FOR DETERMINING WHETHER THE TREATMENT SYSTEM WAS SUCCESSFUL,
ARGUING THAT SUCH A DISTANCE DID NOT RELATE TO THE GROUND-WATER
CONTAMINATION THREAT; RATHER, OTHER FACTORS, SUCH AS THICKNESS AND
PERMEABILITY OF THE UNSATURATED ZONE, DETERMINE THE POTENTIAL FOR
CONTAMINATING GROUND WATER. USING A SIMILAR ARGUMENT, COMMENTERS ARGUED
THAT CORRECTIVE ACTION SHOULD NOT BE TRIGGERED SIMPLY BY THE APPEARANCE
OF CONTAMINATION AT A DEPTH OF THREE TIMES THE ZONE OF INCORPORATION.
AFTER EXAMINING THESE COMMENTS EPA HAD DECIDED TO FOCUS THE INTERIM
STATUS REGULATIONS ON THE ESTABLISHMENT OF THE BASIC MONITORING SYSTEMS
NEEDED TO ACCURATELY DETERMINE WHETHER THE COMPLEX PROCESSES INVOLVED IN
LAND TREATMENT ARE, IN FACT, OCCURRING, AND WHETHER CONTAMINANTS ARE
MIGRATING TO GROUND WATER. THE DEVELOPMENT OF THE STANDARD BY WHICH
SUCCESS OR FAILURE IS JUDGED WILL BE PART OF THE PHASE II REGULATIONS.
REGARDLESS OF WHAT THAT STANDARD IS, THE FACILITY WILL BE REQUIRED TO
INSTALL A SYSTEM OF UNSATURATED ZONE AND GROUND WATER MONITORING TO
DETERMINE THE SUCCESS OF THE TREATMENT PROCESS AND IMPACTS ON GROUND
WATER. UNSATURATED ZONE MONITORING INCLUDES BOTH SOIL-PORE WATER AND
SOIL CORE MONITORING.
WHILE UNSATURATED ZONE MONITORING IS USEFULE IN ASSESSING THE
LIKELIHOOD OF GROUND-WATER CONTAMINATION AT NEW FACILITIES AND IN
INDICATING ANY MIGRATION OCCURRING WITH EACH NEW WASTE APPLIATION AT
EXISTING FACILITIES, GROUND-WATER MONITORING IS THE ONLY MECHANISM THAT
CAN ACCURATELY DETECT THE PRESENCE AND DEGREE OF GROUND-WATER
CONTAMINATION. THEREFORE, GROUND-WATER MONITORING IS REQUIRED AT LAND
TREATMENT FACILITIES. OWNERS AND OPERATORS OF EXISTING LAND TREATMENT
FACILITIES MUST BE ABLE TO DETERMINE THE ACTUAL EFFECT OF THEIR
FACILITIES ON GROUND WATER IN ORDER TO COMPLY WITH THE PHASE II
REQUIREMENTS.
IN ADDITION, THE ENVIRONMENTALLY SENSITIVE NATURE OF LAND TREATMENT
REQUIRES THE OWNER OR OPERATOR TO HAVE AN ACCURATE PICTURE OF THE
TREATMENT PROCESS AT WORK IN THE SOIL. EPA HAS DECIDED THAT SUCH AN
OBJECTIVE REQUIRES INSTALLATION OF BOTH SOIL CORE MONITORING AND
SOIL-PORE WATER MONITORING. SOIL CORE MONITORING IS USEFUL IN
DETERMINING THE EXTENT TO WHICH THE HAZARDOUS WASTES ARE BEING
ATTENUATED AND BROKEN DOWN IN THE SOIL. SOIL-PORE WATER MONITORING IS A
NECESSARY COMPLEMENTARY OR BACK-UP SYSTEM TO ASSURE THAT THE ABSENCE OF
A HAZARDOUS WASTE CONSTITUENT IN THE SOIL CORE SAMPLE INDICATES A
BREAKDOWN OF THE WASTE RATHER THAN MERELY THE RAPID MIGRATION OF THE
WASTE MATERIAL THROUGH THE SOIL MAXTRIX. SEVERAL COMMENTS AND THE
RESULTS OF AN EPA-SPONSORED STUDY INDICATE THAT THE LATTER PHENOMENON
CAN OCCUR FOR SOME ORGANIC COMPOUNDS FOUND IN HAZARDOUS WASTES. A
COMBINATION OF SOIL CORE AND SOIL-PORE WATER MONITORING PROVIDES THE
BASIS FOR A MASS BALANCE ANALYSIS OF THE UNSATURATED ZONE TO DETERMINE
WHETHER THE TREATMENT PROCESS IS MEETING THE TREATMENT OBJECTIVE. USING
THE MONITORING DATA AS FEEDBACK ON THE PERFORMANCE OF A SITE, AN OWNER
OR OPERATOR CAN MORE EFFECTIVELY MANIPULATE OPERATING VARIABLES IN ORDER
TO OPTIMIZE THE PERFORMANCE OF THE SITE (E.G., WASTE APPLICATION RATES
AND PH CONTROLS).
CAREFUL ANALYSIS OF THE UPPER SOIL LAYERS IS ALSO NEEDED BECAUSE OF
ANOTHER CHANGE THAT HAS BEEN MADE IN THE REGULATION. THE AGENCY HAS
DECIDED THAT GROWTH OF FOOD-CHAIN CROPS NEED NOT BE BANNED AT HAZARDOUS
WASTE LAND TREATMENT FACILITIES BUT RATHER SHOULD BE CAREFULLY
REGULATED. INFORMATION ABOUT THE PRESENCE OF CONTAMINANTS IN THE UPPER
LAYERS OF THE SOIL IS, THEREFORE, NECESSARY TO ASSESS THE RISK OF
SIGNIFICANT PLANT UPTAKE OF TOXIC CONSTITUENTS.
SOIL-PORE WATER MONITORING IS MORE EASILY ACHIEVED AT LAND TREATMENT
SITES THAN AT LANDFILLS OR SURFACE IMPOUNDMENTS. LYSIMETERS OR SIMILAR
DEVICES WHICH MEASURE SOIL-PORE WATER CONTAMINATION CAN BE INSTALLED AT
LAND TREATMENT FACILITIES IN THE AREA WHERE WASTE HAS BEEN APPLIED. THE
RELATIVELY SHALLOW DEPTH OF WASTE APPLICATION AT LAND TREATMENT
FACILITIES ALLOWS LYSIMETERS TO BE REPLACED, AT BOTH EXISTING AND NEW
FACILITIES, WHEN THEY BECOME CLOGGED OR OTHERWISE NONFUNCTIONAL.
FURTHERMORE, LAND TREATMENT FACILITIES TYPICALLY DO NOT HAVE LINERS
WHICH WOULD INTERFERE WITH THE PLACEMENT OF LYSIMETERS.
IN RESPONSE TO THE SPECIFIC COMMENTS ON SOIL MONITORING, THE AGENCY
HAS DECIDED NOT OT SPECIFY PARTICULAR PROCEDURES OR PROTOCOLS FOR
CONDUCTING UNSATURATED ZONE MONITORING DURING INTERIM STATUS. OWNERS
AND OPERATORS WILL BE GIVEN THE FLEXIBILITY TO DEVELOP REASONABLE
MONITORING PLANS THAT MEET THE GENERAL OBJECTIVES SPECIFIED FOR SUCH
PLANS. ONCE ESTABLISHED, THESE PLANS MUST BE FOLLOWED, AND AN OWNER OR
OPERATOR'S FAILURE TO FOLLOW HIS OWN PLAN CONSTITUTES A SEPARATE
VIOLATION OF THESE REGULATIONS.
IN CONSIDERING THE CONSTITUENTS TO BE MONITORED AND ANALYZED FOR IN
THE UNSATURATED ZONE, EPA CONSIDERED THE USE OF INDICATORS. THAT
APPROACH WAS REJECTED, HOWEVER, BECAUSE THE AGENCY HAS NOT YET BEEN ABLE
TO DEVISE A SET OF INDICATORS THAT REFLECT THE SUCCESS OF WASTE
TREATMENT IN THE SOIL. EPA IS REQUIRING THAT THE OWNER OR OPERATOR
MONITOR AND ANALYZE FOR THOSE HAZARDOUS WASTE CONSTITUENTS CONTAINED IN
THE WASTES APPLIED AT THE FACILITY THAT CAUSED THOSE WASTES TO BE LISTED
AS HAZARDOUS, IF THEY WERE LISTED, AND THOSE THAT EXCEED THE MAXIMUM
CONTAMINANT LIMITS IN TABLE 1 OF SECTION 261.24 OF THIS CHAPTER. THESE
CONSTITUENTS, AT A MINIMUM, ARE THE ONES WHICH HAVE THE POTENTIAL TO
CREATE ENVIRONMENTAL HAZARDS IF THESE WASTES ARE MISMANAGED. SUCH
CONSTITUENTS MUST, THEREFORE, BE INCLUDED IN ANY MONITORING SYSTEM
DESIGNED TO DETERMINE THE EFFECTIVENESS OF A LAND TREATMENT SYSTEM IN
REDUCING THE HAZARDOUSNESS OF THE WASTE. THE AGENCY BELIEVES THAT THE
CONSTITUENTS TO BE MONITORED ARE SUFFICIENTLY FEW AS NOT TO CAUSE AN
UNDUE BURDEN.
IN RESPONSE TO THE CHALLENGE TO THE "THREE-TIMES THE ZONE OF
INCORPORATION" TEST TO DETERMINE SUCCESS OF TREATMENT, THE AGENCY IS
EXPLORING WHETHER OTHER SI MPLER TESTS CAN BE DEVELOPED. UNTIL THE TIME
THAT SUCH A TEST IS DEVELOPED, OWNERS AND OPERATORS WILL HAVE TO PROVIDE
WASTE-SPECIFIC, CONSTITUENT-SPECIFIC, AND SITE-SPECIFIC EVIDENCE THAT
THE TREATMENT OBJECTIVE IS BEING MET.
THE FINAL INTERIM STATUS REGULATIONS REQUIRE OWNERS AND OPERATORS
OF LAND TREATMENT FACILITIES TO DEVELOP AND IMPLEMENT UNSATURATED
ZONE MONITORING PLANS. THESE PLANS MUST BE DESIGNED TO DETERMINE
THE CONCENTRATIONS AND MIGRATIONS OF HAZARDOUS WASTE CONSTITUENTS
IN THE SOIL. THE PLAN MUST ALSO DESCRIBE HOW THE OWNER OR OPERATOR
WILL ESTABLISH BACKGROUND CONCENTRATIONS OF THOSE CONSTITUENTS
THROUGH TESTING OF SIMILAR UNTREATED SOIL. THE MONITORING PROGRAM
FOR THE UNSATURATED ZONE MUST INCLUDE SOIL CORE AND SOIL-PORE
WATER MONITORING (GROUND-WATER MONITORING IS REQUIRE.
SEPARATELY UNDER SUBPART F OF THESE REGULATIONS). THE UNSATURATED
ZONE MONITORING PLAN MUST SPECIFY THE OWNER'S OR OPERATOR'S
RATIONALE FOR SUCH KEY ELEMENTS AS THE DEPTH OF MONITORING, THE
NUMBER OF SAMPLES, THE FREQUENCY OF SAMPLING, AND THE TIMING OF
SAMPLING. THESE DECISIONS MUST REFLECT A CONSIDERATION OF THE
VARIABILITY OF THE WASTE AND THE WASTE/SOIL MIXTURE, PROXIMITY
TO GROUND WATER, THE MANNER OF WASTE APPLICATION, AND SOIL
PERMEABILITY.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 056 OF 106
COSTLE D M ADMINISTRATOR
EPA
113420
REGULATION
6. FOOD-CHAIN CROPS. THE PROPOSED REGULATION PROHIBITED GROWING
FOOD-CHAIN CROPS ON ACTIVE PORTIONS (TREATED AREAS) OF HAZARDOUS WASTE
TREATMENT FACILITIES. THE PURPOSE OF THIS REGULATION WAS TO PROTECT
HUMANS FROM CONSUMING TOXIC MATERIALS THAT MIGHT BE PRESENT IN OR ON
CROPS GROWN ON LAND TO WHICH HAZARDOUS WASTE HAS BEEN APPLIED. AT THE
TIME, THE AGENCY CONSIDERED A BAN AS THE ONLY MEANS OF ACHIEVING THIS
OBJECTIVE.
COMMENTERS OBJECTED TO THIS BAN, SUGGESTING THAT SOME CROPS COULD BE
GROWN ON TREATED SOIL WITHOUT ENDANGERING HUMAN HEALTH. INSTEAD OF A
BAN, COMMENTERS SUGGESTED ALTERNATIVES SUCH AS SPECIFYING "SAFE"
APPLICATION RATES TO THE SOIL, AND MONITORING CROPS FOR THEIR UPTAKE OF
HAZARDOUS CONSTITUENTS. THE AGENCY ALSO RECEIVED COMMENTS SUGGESTING
THAT THE BAN WAS INCONSISTENT WITH THE REGULATORY APPROACH TAKEN TO
PROJECT FOOD-CHAIN CROPS UNDER SUBTITLE D OF RCRA. THOSE REGULATIONS
WERE FINALIZED AS THE "CRITERIA FOR CLASSIFICATION OF SOLID WASTE
DISPOSAL FACILITIES AND PRACTICES" (THE CRITERIA, 40 CFR 257) ON
SEPTEMBER 13, 1979. THE CRITERIA PRESCRIBED ANNUAL APPLICATION RATES
AND LIMITS ON CUMULATIVE LOADINGS FOR CADMIUM BASED ON THE SPECIFIC
HEALTH RISK, AND TREATMENT REQUIREMENTS FOR WASTES CONTAINING PCB'S OR
PATHOGENS. COMMENTERS ARGUED THAT THE APPLICATION OF SOME HAZARDOUS
WASTE TO FOOD-CHAIN CROPS PRESENTS NO GREATER RISK THAN SUCH PRACTICE
WITH SOME NONHAZARDOUS WASTE.
IT IS THE AGENCY'S FIRM BELIEF THAT GROWTH OF FOOD-CHAIN CROPS ON
LAND TO WHICH HAZARDOUS WASTE HAS BEEN APPLIED IS AN ISSUE WHICH SHOULD
BE DEALT WITH CAUTIOUSLY, AND SHOULD BE ALLOWED ONLY WHERE THERE IS
CONVINCING EVIDENCE THAT THE PRACTICE IS SAFE. EPA BELIEVES THERE IS
LITTLE REAL NEED TO GROW FOOD-CHAIN CROPS AT LAND TREATMENT FACILITIES.
THE SMALL AMOUNT OF LAND USED FOR LAND TREATMENT REPRESENTS A NEGLIGIBLE
PORTION OF THE TOTAL PRODUCTIVE LAND AVAILABLE FOR CROP GROWTH IN THIS
COUNTRY. FURTHERMORE, THERE ARE OTHER PRODUCTIVE USES OF THE LAND, SUCH
AS FOR ORNAMENTAL HORTICULTURE AND GROWTH OF FIBER CROPS OR OTHER
NON-FOOD CROPS.
ON THE OTHER HAND, THE AGENCY FEELS THAT WHERE THERE IS CONVINCING
EVIDENCE THAT SUCH CROP GROWTH IS SAFE, IT WOULD BE UNJUSTIFIED TO
PROHIBIT IT. IT IS CONCEIVABLE THAT CONSTITUENTS IN A PARTICULAR
HAZARDOUS WASTE MAY NOT BE TAKEN UP BY CERTAIN FOOD-CHAIN CROPS, OR
AFTER A PERIOD OF TREATMENT, THE CONSTITUENTS MAY HAVE DEGRADED INTO
PRODUCTS NON-HAZARDOUS TO HUMANS.
THE AGENCY CAREFULLY EXAMINED THE SUGGESTION MADE BY COMMENTERS OF
SPECIFYING "SAFE" APPLICATION RATES. AT THIS TIME, HOWEVER, THE
EXISTING DATA BASE ON RATES OF CROP UPTAKE OF HAZARDOUS SUBSTANCES ARE
NOT COMPREHENSIVE ENOUGH TO PERMIT THE AGENCY TO SPECIFY SAFE
APPLICATION RATES. REGULATION BY CROP MONITORING IS LIMITED BY THE FACT
THAT SAFE LEVELS OF MOST HAZARDOUS SUBSTANCES IN CROPS HAVE NOT BEEN
DETERMINED BY THE FOOD AND DRUG ADMINISTRATION, THE DEPARTMENT OF
AGRICULTURE, OR THE ENVIRONMENTAL PROTECTION AGENCY.
THE AGENCY ALSO EXAMINED THE APPROACH USED IN THE CRITERIA AND
CONCLUDED THAT THE LIMITS DEVELOPED IN THOSE REGULATIONS FOR CADMIUM
SHOULD BE INCORPORATED INTO THIS REGULATION. THUS THE CADMIUM LIMITS
PRESENT IN THAT REGULATION WILL BE APPLICABLE TO HAZARDOUS WASTE LAND
TREATMENT FACILITIES.
THE CRITERIA INCLUDE TWO APPROACHES FOR THE LAND APPLICATION OF
WASTES CONTAINING CADMIUM. THE FIRST APPROACH INCORPORATES FOUR SITE
MANAGEMENT CONTROLS: CONTROL OF THE PH OF THE WASTE AND SOIL MIXTURE;
ANNUAL CADMIUM APPLICATION LIMITS THAT ARE REDUCED OVER TIME;
CUMULATIVE CADMIUM APPLICATION LIMITS BASED ON SOIL CATION EXCHANGE
CAPACITY (CEC) (SEPCIFIED IN UNITS OF MILLIEQUIVALENTS OF EXCHANGEABLE
CATIONS IN SOIL PER GRAM OF SOIL); AND A RESTRICTION OF THE CADMIUM
CONCENTRATION IN WASTE APPLIED TO FACILITIES WHERE TOBACCO, LEAFY
VEGETABLES AND ROOT CROPS ARE GROWN.
THE SECOND APPROACH ALLOWS UNLIMITED APPLICATION OF CADMIUM PROVIDED
FOUR SPECIFIC CONTROL MEASURES ARE TAKEN. FIRST, THE CROP GROWN CAN
ONLY BE USED AS ANIMAL FEED. SECOND, THE PH OF THE SOIL MUST BE
MAINTAINED AT 6.5 OR ABOVE FOR AS LONG AS FOOD CHAIN CROPS ARE GROWN.
THIRD, A FACILITY OPERATING PLAN MUST DESCRIBE HOW THE ANIMAL FEED WILL
BE DISTRIBUTED TO PREVENT HUMAN INGESTION. FOURTH, FUTURE OWNERS ARE
PROVIDED NOTICE (THROUGH PROVISIONS IN LAND RECORDS OR PROPERTY DEED)
THAT THERE ARE HIGH LEVELS OF CADMIUM IN THE SOIL AND THAT FOOD-CHAIN
CROPS SHOULD NOT BE GROWN.
THE AGENCY DOES NOT BELIEVE, HOWEVER, THAT THE CRITERIA SUFFICIENTLY
ADDRESS THE BROAD RANGE OF CONSTITUENTS PRESENT IN HAZARDOUS WASTE.
THEREFORE, EPA HAS DECIDED TO SET ADDITIONAL REQUIREMENTS THAT RELATE TO
HAZARDOUS CONSTITUENTS IN WASTE APPLIED AS WELL AS OTHER SUBSTANCES OF
CONCERN (I.E., ARSENIC, LEAD, AND MERCURY) BECAUSE OF THEIR EFFECT ON
FOOD-CHAIN CROPS. THESE ADDITIONAL SUBSTANCES HAVE BEEN IDENTIFIED
BECAUSE OF THEIR RELATIVELY HIGH TOXICITY TO HUMANS AND EVIDENCE THAT
THEY CAN BE TAKEN UP BY CROPS. MERCURY CAN ENTER PLANTS THROUGH THE
ROOTS AND BE REAILY TRANSLOCATED THROUGHOUT THE PLANT. ARSENIC TENDS TO
ACCUMULATE IN THE ROOTS OF MOST CROPS, WHICH IS A CONCERN WHEN ROOT
CROPS SUCH AS RADISHES, CARROTS, ETC., ARE GROWN. WHEN IN HIGH
CONCENTRATIONS IN THE SOIL, LEAD HAS BEEN SHOWN TO TRANSLOCATE TO CROPS.
THE AGENCY IS CONCERNED THAT THERE ARE OTHER HAZARDOUS SUBSTANCES IN
THE WASTE, INCLUDING TOXIC ORGANICS, THAT MAY BE TAKEN UP BY PLANTS.
BECAUSE MOST PLANT UP-TAKE STUDIES HAVE ADDRESSED ONLY INORGANICS, THERE
IS A PAUCITY OF DATA ON THE UP-TAKE OF TOXIC ORGANICS BY CROPS. THE
AGENCY IS AWARE, HOWEVER, THAT DATA MAY EXIST THAT COULD IDENTIFY OTHER
HAZARDOUS SUBSTANCES OF CONCERN. THEREFORE, EPA IS SEEKING INFORMATION
ON OTHER HAZARDOUS SUBSTANCES THAT COULD BE TAKEN UP BY CROPS.
WHERE THE AGENCY DOES NOT YET HAVE A CLEAR SPECIFICATION OF THE
"SAFE" LEVEL OF CONTAMINANTS IN FOOD CROPS, IT WILL ASSUME THAT THE
LEVEL OF SUCH CONTAMINANTS PRESENTLY IN FOOD CROPS NOT GROWN ON
WASTE-AMENDED SOILS IS ACCEPTABLE. AS FURTHER RESEARCH REFINES THE
AGENCY'S THINKING, IT MAY BE THAT HEALTH TOLERANCES IN FOOD CROPS SHOULD
BE HIGHER OR LOWER THAN THE AVERAGE LEVELS OTHERWISE PRESENT IN SUCH
CROPS.
BASED ON THAT ASSUMPTION, EPA HAS DEVISED A TWO-PART TEST TO
DETERMINE WHETHER FOOD-CHAIN CROP GROWTH ON LAND TREATMENT FACILITIES IS
ACCEPTABLE. PRIOR TO GROWING A CROP FOR MARKET ON SOILS THAT HAVE
RECEIVED HAZARDOUS WASTES, THE OWNER OR OPERATOR MUST DOCUMENT THAT THE
HAZARDOUS WASTE CONSTITUENTS IN THE WASTE, AS WELL AS ANY ARSENIC, LEAD,
AND MERCURY, WILL NOT (1) BE TRANSFERRED TO THE EDIBLE PORTION OF THE
CROP BY PLANT UP-TAKE OR DIRECT CONTACT, OR BE TRANSFERRED TO FOOD-CHAIN
ANIMALS; OR IF IT DOES, THAT IT WILL NOT (2) OCCUR IN GREATER
CONCENTRATIONS IN THE CROP THAN IN CROPS GROWN IN THE SAME REGION ON
SIMILAR SOILS WHICH HAVE NOT HAD WASTES APPLIED.
AN OWNER OR OPERATOR MUST USE ACTUAL FIELD STUDIES OF THE CROP FOR
COMPARATIVE PURPOSES. ALSO, THE CONDITIONS UNDER WHICH THE COMPARABLE
CROPS ARE GROWN MUST BE SIMILAR TO THE CONDITIONS FOUND AT THE FACILITY.
FOR EXAMPLE, SOIL TYPE, SOIL MOISTURE, SOIL PH, AND SOIL NUTRIENTS,
MUST BE SIMILAR AT BOTH THE FACILITY AND THE CONTROL SITES. THE OWNER
OR OPERATOR MUST ALSO DOCUMENT THE SAMPLE SELECTION CRITERIA, SAMPLE
SIZE DETERMINATION, ANALYTICAL METHODS, AND STATISTICAL PROCEDURES USED
TO MAKE THE DEMONSTRATION. IN ORDER TO DETERMINE COMPLIANCE PRIOR TO
WASTE APPLICATION THE OWNER OR OPERATOR MUST PRE-TEST A SAMPLE CROP
USING THE TYPE OF WASTE AND APPLICATION RATE THAT WILL BE USED AT THE
FACILITY.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 057 OF 106
COSTLE D M ADMINISTRATOR
EPA
113421
REGULATION
FINALLY, EPA HAS ADDED A PROVISION TO THESE REGULATIONS THAT REQUIRES
OWNERS OR OPERATORS OF LAND TREATMENT FACILITIES ON WHICH FOOD-CHAIN
CROPS HAVE BEEN GROWN, OR ARE BEING GROWN, TO NOTIFY THE REGIONAL
ADMINISTRATOR WITHIN 60 DAYS AFTER THE EFFECTIVE DATE OF THESE
REGULATIONS IF THEY INTEND TO AGAIN GROW FOOD-CHAIN CROPS DURING THE
INTERIM STATUS PERIOD. IN ADDITION, A COMMENT IN THE REGULATION
APPRISES AN OWNER OR OPERATOR, WHO HAS NOT ACCORDINGLY NOTIFIED THE
REGIONAL ADMINISTRATOR AND WHO PROPOSES TO GROW FOOD-CHAIN CROPS DURING
THE INTERIM STATUS PERIOD, THAT THIS IS A CHANGE IN PROCESS AND HE MUST
NOTIFY THE ADMINISTRATOR UNDER SECTION 122.23(C)(3) OF THE CONSOLIDATED
PERMIT REGULATIONS. THESE NOTIFICATION PROCEDURES ARE DESIGNED TO GIVE
THE REGIONAL ADMINISTRATOR NOTICE OF THOSE FACILITIES THAT ARE ENGAGING
IN THE ENVIRONMENTALLY SENSITIVE ACTIVITY OF GROWING FOOD-CHAIN CROPS AT
LAND TREATMENT FACILITIES. THIS WILL ASSIST THE REGIONAL ADMINISTRATOR
IN THE ESTABLISHMENT OF PRIORITIES FOR PERMITTING.
7. CLOSURE. THE PROPOSED REGULATIONS PROVIDED TWO BASIC OPTIONS FOR
CLOSURE OF A LAND TREATMENT FACILITY. ONE OPTION WAS TO RETURN THE SOIL
IN THE TREATED AREA TO ITS PRE-EXISTING CONDITION, AS DETERMINED BY
BACKGROUND SOIL ANALYSIS OR ANALYSIS OF SIMILAR LOCAL SOILS. THE OTHER
OPTION WAS TO REMOVE THE CONTAMINATED SOIL FROM THE FACILITY IF THAT
SOIL MET THE CHARACTERISTICS OF A HAZARDOUS WASTE. (IF IT DID NOT HAVE
ANY OF THE CHARACTERISTICS OF A HAZARDOUS WASTE, NO FURTHER ACTION WAS
REQUIRED.) HOWEVER, A VARIANCE TO THE SECOND OPTION ALLOWED CLOSURE OF A
FACILITY AS A LANDFILL IF THE OWNER OR OPERATOR COULD DEMONSTRATE THAT
THE DESIGN OR LOCATION OF THE SITE PROVIDED LONG TERM INTEGRITY AND
ENVIRONMENTAL PROTECTION EQUIVALENT TO A LANDFILL, AS SPECIFIDED IN THE
PROPOSED REGULATIONS.
MANY COMMENTERS ARGUED THAT THE REQUIREMENT TO RETURN THE SOIL TO ITS
PRE-EXISTING CONDITION WAS IMPRACTICAL AND WOULD MAKE LAND TREATMENT
INFEASIBLE. THEY ALSO OBJECTED TO THE PROVISION WHICH REQUIRED THAT THE
SOIL BE REMOVED AT CLOSURE. ON THE OTHER HAND, THE EPA EXTRACTION
PROCEDURE (EP) WAS CRITICIZED AS BEING AN INAPPROPRIATE MECHANISM FOR
DETERMINING WHETHER THE SOIL IN THE TREATED AREA WAS HAZARDOUS. THE EP
WAS SAID TO BE TOO LIMITED IN APPLICABILITY, BECAUSE IT DOES NOT ADDRESS
MOST ORGANICS AND SOME METALS. SOME COMMENTERS SUGGESTED ALTERNATIVE
CLOSURE PROCEDURES WHICH ALLOW TAILORING THE CLOSURE PROCEDURES TO THE
SITE.
AFTER EXAMINING THESE COMMENTS, THE AGENCY HAS CONCLUDED THAT GREATER
FLEXIBILITY SHOULD BE GIVEN IN THE REGULATION TO ALLOW THE OWNER OR
OPERATOR TO DEVELOP A PLAN THAT CONSIDERS CERTAIN KEY FACTORS AND THAT
MEETS GENERAL HUMAN HEALTH AND ENVIRONMENTAL OBJECTIVES. UNDER THE
FINAL INTERIM STATUS REGULATIONS THE OWNER OR OPERATOR OF A LAND
TREATMENT FACILITY MUST DEVELOP AND IMPLEMENT A FACILITY CLOSURE PLAN.
THE TERMS OF THAT PLAN ARE ENFORCEABLE AGAINST THE OWNER OR OPERATOR.
THE PLAN MUST ADDRESS FOUR OBJECTIVES: (1) CONTROLLING THE MIGRATION
OF HAZARDOUS WASTE AND HAZARDOUS WASTE CONSTITUENTS INTO GROUND WATER;
(2) CONTROLLING THE RELEASE OF CONTAMINATED RUN-OFF TO SURFACE WATER;
(3) CONTROLLING THE RELEASE OF AIRBORNE PARTICULATE CONTAMINANTS; AND
(4) COMPLIANCE WITH THE STANDARDS ESTABLISHED FOR FOOD-CHAIN CROPS. THE
OWNER OR OPERATOR MUST CONSIDER A RANGE OF FACTORS AFFECTING THE
FACILITY'S ABILITY TO MEET THE OBJECTIVES. THESE FACTORS INCLUDE THE
WASTE, THE CLIMATE, THE SITE LOCATION, THE SOIL, AND THE DEPTH OF
CONTAMINANT MIGRATION. THE OWNER OR OPERATOR MUST ALSO CONSIDER THE
APPLICABILITY OF VARIOUS CLOSURE METHODS INCLUDING REMOVAL OF THE SOIL,
RUN-OFF COLLECTION AND TREATMENT, USE OF COVER MATERIALS, DIVERSION
STRUCTURES, AND ADDITIONAL MONITORING.
THE OWNER OR OPERATOR MUST ALSO DEVELOP A POST-CLOSURE CARE PLAN.
THE TERMS OF THIS PLAN ARE ALSO ENFORCEABLE AGAINST THE OWNER OR
OPERATOR. UNDER THESE INTERIM STATUS REGULATIONS THE POST-CLOSURE CARE
PLAN MUST PROVIDE FOR MAINTENANCE OF MONITORING SYSTEMS, RESTRICTION OF
ACCESS AS APPROPRIATE FOR POST-CLOSURE USE, AND CONTROL OF THE GROWTH OF
FOOD-CHAIN CROPS TO THE SAME DEGREE AS REQUIRED FOR AN ACTIVE FACILITY.
THE REQUIREMENTS FOR THE CLOSURE AND POST-CLOSURE PLANS FOR LAND
TREATMENT FACILITIES AND LANDFILLS ARE SIMILAR IN TERMS OF OBJECTIVES
BUT DIFFER SLIGHTLY IN THE MECHANISMS BY WHICH THESE OBJECTIVES ARE TO
BE ACHIEVED. THE LANDFILL POST-CLOSURE PLAN REQUIRES THE OWNER OR
OPERATOR TO ADDRESS THE FOLLOWING: (1) MAINTENANCE AND MONITORING OF
LEACHATE COLLECTION SYSTEMS (IF PRESENT), (2) MAINTENANCE AND MONITORING
OF GAS CONTROL SYSTEMS (IF PRESENT), AND (3) FINAL COVER. FOR LAND
TREATMENT FACILITIES, HOWEVER, THE FIRST TWO ITEMS ARE NOT REQUIRED
BECAUSE THE AGENCY IS NOT AWARE OF ANY LEACHATE COLLECTION SYSTEMS AND
THESE FACILITIES ARE RARELY PLAGUED BY GAS PROBLEMS. THIS RESULTS
BECAUSE COVER MATERIAL IS NOT LAID DOWN AFTER THE WASTE IS APPLIED SO
THAT GASES ARE NOT CONFINED, AND DECOMPOSITION OF THE WASTE OCCURS
PREDOMINANTLY IN AN AEROBIC STATE SO THAT METHANE, CARBON MONOXIDE, AND
HYDROGEN SULFIDE ARE NOT PRODUCED. ALTHOUGH FINAL COVER IS ADDRESSED IN
BOTH THE LAND TREATMENT AND LANDFILL CLOSURE REQUIREMENTS, IT IS
MANDATORY ONLY FOR LANDFILLS. FINAL COVER MUST BE CONSIDERED, BUT IS
NOT MANDATORY, FOR A LAND TREATMENT FACILITY WHERE THE WASTE HAS BEEN
RENDERED NON-HAZARDOUS. WHERE WASTES HAVE BEEN RENDERED LESS HAZARDOUS,
THE DETERMINATION OF WHETHER FINAL COVER IS NEEDED, IN PART, WILL BE
DEPENDENT ON THE DEGREE OF RISK TO HUMAN HEALTH AND THE ENVIRONMENT
PRESENTED BY THE HAZARDOUS WASTE CONSTITUENTS REMAINING IN THE SOIL.
8. IGNITABLE, REACTIVE, OR INCOMPATIBLE WASTES. THE PROPOSED
REGULATIONS PROHIBITED PLACING IGNITABLE, REACTIVE, VOLATILE, OR
INCOMPATIBLE WASTES IN A LAND TREATMENT FACILITY, BUT ALLOWED A VARIANCE
IF THE OWNER OR OPERATOR COULD DEMONSTRATE THAT AIRBORNE CONTAMINANTS
WOULD NOT EXCEED A SPECIFIED CONCENTRATION AND THAT THE ATTENUATION
CAPACITY OF THE SOIL WOULD NOT BE ADVERSELY AFFECTED THROUGH HEAT
GENERATION, FIRES, OR EXPLOSIONS.
THE PRIMARY CRITICISM OF THE PROPOSED REGULATION, OTHER THAN THE
RESTRICTION ON AIRBORNE CONTAMINANTS, WAS THAT THE PROHIBITION WAS
INAPPROPRIATE BECAUSE MANY WASTE CLASSIFIED AS IGNITABLE, REACTIVE, OR
INCOMPATIBLE MIGHT LOSE THESE PROPERTIES WHEN LAND TREATED. THE AGENCY
AGREES AND HAS MODIFIED THE REGULATION. THE FINAL STANDARD REQUIRES THE
OWNER OR OPERATOR TO INCORPORATE IGNITABLE OR REACTIVE WASTES INTO THE
SOIL IN SUCH A MANNER THAT THE RESULTING WASTE, MIXTURE, OR DISSOLUTION
OF MATERIAL NO LONGER EXHIBITS INGITABLE OR REACTIVE CHARACTERISTICS,
AND COMPLIES WITH SECTION 265.17(B). IGNITABLE OR REACTIVE WASTES MAY
ALSO BE PLACED IN A LAND TREATMENT FACILITY IF THEY ARE RENDERED
NON-IGNITABLE OR NON-REACTIVE BEFORE LAND TREATMENT. INCOMPATIBLE
WASTES MAY NOT BE PLACED IN THE SAME LAND TREATMENT AREA UNLESS THE LAND
TREATMENT PROCESS COMPLIES WITH SECTION 265.17(B). FOR A DESCRIPTION OF
THE GENERAL REQUIREMENTS APPLICABLE TO THE DISPOSAL OF IGNITABLE,
REACTIVE, OR INCOMPATIBLE WASTES SEE THE "GENERAL FACILITY STANDARDS"
PORTION OF THIS PREAMBLE.
LANDFILLING HAS HISTORICALLY BEEN THE PREFERRED MEANS OF DISPOSING OF
HAZARDOUS WASTE. UNTIL THE LAST DECADE, SOME PEOPLE ACTED AS THOUGH,
ONCE BURIED, HAZARDOUS WASTES WOULD CAUSE NO MORE DIFFICULTIES. PAST
PRACTICES OFTEN FOCUSED ONLY ON BURYING THE WASTE TO GET IT OUT OF SIGHT
AND ON CONTROL OF SURFACE PROBLEMS SUCH AS BLOWING LITTER OR VECTORS.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 058 OF 106
COSTLE D M ADMINISTRATOR
EPA
113422
REGULATION
RECENT EXPERIENCES AT LOVE CANAL IN NEW YORK AND OTHER BURIAL OPERATIONS
HAVE DEMONSTRATED THE POTENTIAL FOR SEVERE HUMAN HEALTH AND
ENVIRONMENTAL IMPACTS FROM IMPROPER LANDFILLING.
MANY ARGUE THAT, SINCE MANY OF THESE WASTES REMAIN HAZARDOUS FOR VERY
LONG PERIODS, THEY SHOULD NOT BE LANDFILLED. EPA AGREES IN PRINCIPLE
THAT IT IS BETTER TO DESTROY OR RECYCLE HAZARDOUS WASTES THAN TO
LANDFILL THEM, BUT THE FACT REMAINS THAT, FOR THE FORESEEABLE FUTURE,
LAND DISPOSAL WILL BE NECESSARY BECAUSE IT IS TECHNICALLY INFEASIBLE AT
PRESENT TO RECYCLE, TREAT, OR DESTROY ALL HAZARDOUS WASTE.
OVER THE PAST DECADE, RESEARCH AND INVESTIGATIONS OF GOOD AND BAD
PRACTICES, INCLUDING DOCUMENTED DAMAGE CASES, HAVE ADVANCED THE
STATE-OF-THE-ART OF LANDFILLING SIGNIFICANTLY.
LANDFILLING IS MUCH MORE THAN JUST BURIAL OF WASTES, PARTICULARLY FOR
HAZARDOUS WASTES. LANDFILLS MUST PROVIDE LONG-TERM PROTECTION OF GROUND
WATER, SURFACE WATER, AIR, AND HUMAN HEALTH. ALTHOUGH THE
STATE-OF-THE-ART IS STILL DEVELOPING, A NUMBER OF TECHNIQUES ARE NOW
AVAILABLE FOR EFFECTIVELY REDUCING THE ADVERSE HEALTH AND ENVIRONMENTAL
EFFECTS FROM LANDFILLS.
THE PROBLEMS WHICH HAZARDOUS WASTE LANDFILLS HAVE PRESENTED CAN BE
DIVIDED INTO TWO BROAD CLASSES, WHICH THESE REGULATIONS ATTEMPT TO
ADDRESS. THE FIRST CLASS INCLUDES FIRES, EXPLOSIONS, PRODUCTION OF
TOXIC FUMES, AND SIMILAR PROBLEMS RESULTING FROM THE IMPROPER MANAGEMENT
OF IGNITABLE, REACTIVE, AND INCOMPATIBLE WASTES. THE AGENCY BELIEVES
THAT METHODS FOR DEALING WITH THESE PROBLEMS ARE GENERALLY AVAILABLE
TODAY, AND THAT THEY CAN BEGIN TO BE IMPLEMENTED IN THESE INTERIM STATUS
STANDARDS WITHOUT SUBSTANTIAL CAPITAL EXPENDITURES, THE NEED FOR
CASE-BY-CASE DETERMINATIONS BY EPA PERMITTING OFFICIALS, OR SUBSTANTIAL
LEAD TIMES. THESE METHODS INCLUDE THE ANALYSIS OF WASTES TO PROVIDE
ENOUGH INFORMATION FOR THEIR PROPER MANAGEMENT; THE CONTROLLED MIXING
OF INCOMPATIBLE WASTES OR THEIR SEGREGATION IN SEPARATE LANDFILL CELLS;
AND THE LANDFILLING OF IGNITABLE AND REACTIVE WASTES ONLY WHEN THEY ARE
RENDERED NOT IGNITABLE OR REACTIVE.
THE SECOND CLASS OF PROBLEMS, CONTAMINATION OF SURFACE AND GROUND
WATERS, PRESENTS SUBSTANTIALLY MORE DIFFICULTY. SEVERAL APPROACHES TO
ENVIRONMENTAL PROTECTION, INCLUDING PROPER SITING, LINING AND LEACHATE
COLLECTION, DO NOT MEET EPA'S GENERAL INTERNAL GUIDELINES FOR THOSE
STANDARDS IT WILL IMPOSE DURING INTERIM STATUS. SUCH STANDARDS MIGHT
INVOLVE TOO GREAT A PRE-PERMIT INVESTMENT, OR MIGHT BE SO SITE-OR
WASTE-SPECIFIC THAT THEY WOULD REQUIRE CASE-BY-CASE DETERMINATIONS BY
THE REGIONAL ADMINISTRATOR. SUCH STANDARDS COULD ALSO REQUIRE AUTOMATIC
CLOSURE OR RELOCATION OF SOME FACILITIES, OR SUBSTANTIAL RETROFITTING.
OTHER MEASURES, HOWEVER, ARE AVAILABLE WHICH WILL HELP REDUCE THE
FORMATION OF LEACHATE IN CURRENTLY OPERATING LANDFILLS. THE MEASURES
INCORPORATED IN THESE INTERIM STATUS REGULATIONS ARE DIVERSION OF
"RUN-ON" (WATER FLOWING OVER THE GROUND ONTO ACTIVE PORTIONS OF THE
FACILITY) AWAY FROM THE ACTIVE FACE OF THE LANDFILL; TREATMENT OF ANY
LIQUID WASTES OR SEMI-SOLID WASTES SO THAT THEY DO NOT CONTAIN FREE
LIQUIDS; PROPER CLOSURE (INCLUDING A COVER) AND POST-CLOSURE CARE TO
CONTROL EROSION AND THE INFILTRATION OF RAINFALL; AND CRUSHING OR
SHREDDING MOST LANDFILLED CONTAINERS SO THAT THEY CANNOT LATER COLLAPSE
AND LEAD TO SUBSIDENCE AND CRACKING OF THE COVER. IN ADDITION, THESE
REGULATIONS REQUIRE GROUND-WATER MONITORING TO DETECT CONTAMINATION OF
GROUND WATER, AND COLLECTION OF RAINWATER AND OTHER RUN-OFF FROM THE
ACTIVE FACE OF THE LANDFILL TO CONTROL SURFACE WATER POLLUTION. AS
DISCUSSED PREVIOUSLY UNDER "GENERAL REQUIREMENTS FOR IGNITABLE,
REACTIVE, OR INCOMPATIBLE WASTES," THE AGENCY IS ALSO CONSIDERING
REQUIRING THE SEGREGATION OF WASTES, SUCH AS ACIDS, WHICH WOULD
MOBILIZE, SOLUBILIZE, OR DISSOLVE OTHER WASTES OR WASTE CONSTITUENTS,
SUCH AS HEAVY METALS. THESE REGULATIONS REPRESENT AN IMPORTANT STEP
TOWARD SAFER DISPOSAL OF HAZARDOUS WASTES IN LANDFILLS.
REGULATIONS SIMILAR TO THOSE APPEARING IN THE PRESENT SECTIONS ON
"GENERAL OPERATING REQUIREMENTS" AND "SPECIAL REQUIREMENTS FOR IGNITABLE
OR REACTIVE WASTES" WERE PROPOSED FOR INCLUSION IN THE GENERAL
STANDARDS. THEY ARE BEING PROMULGATED HERE INTERIM FINAL ONLY TO THE
EXTENT THAT THE AGENCY WILL ACCEPT COMMENTS ON WHETHER THEY ARE
APPROPRIATE FOR INCLUSION IN THE INTERIM STATUS STANDARDS. REGULATIONS
ON CLOSURE AND POST-CLOSURE SPECIAL REQUIREMENTS FOR LIQUID WASTE, AND
SPECIAL REQUIREMENTS FOR CONTAINERS ARE BEING PROMULGATED INTERIM FINAL
AND ARE FURTHER DISCUSSED BELOW.
1. LANDFILL CELLS. THESE REGULATIONS INCORPORATE THE CONCEPT OF
LANDFILL CELLS. SUCH CELLS CAN BE USED TO SEPARATE INCOMPATIBLE WASTES.
AS SUGGESTED BY THE COMMENTS, THE PROPOSED DEFINITION OF A CELL AS "A
PORTION OF A WASTE IN A LANDFILL" HAS BEEN REPLACED BY A "A DISCRETE
VOLUME OF A HAZARDOUS WASTE LANDFILL WHICH USES A LINER TO PROVIDE
ISOLATION OF WASTES FROM ADJACENT CELLS OR WASTES." THIS MAKES THE CELL
A DISCRETE PART OF THE DISPOSAL FACILITY RATHER THAN A PORTION OF WASTE
AS IN THE PROPOSED DEFINITION. THIS ARRANGEMENT, TOGETHER WITH THE
FLEXIBILITY OF CLOSURE REGULATIONS, AND THE CONCEPT OF PARTIAL CLOSURE,
PERMITS DIFFERENT CELLS TO HAVE DIFFERENT CLOSURE REQUIREMENTS AND MAY
PERMIT DIFFERENT FINANCIAL ARRANGEMENTS IN APPROPRIATE CIRCUMSTANCES.
CELLS MAY BE PHYSICALLY SEPARATE AREAS OF A LANDFILL, OR TRENCHES OR
PARTS OF TRENCHES, OR SEPARATE PITS. THE DETERMINING CONDITION IS THAT
THE CELL BE A DISCRETE VOLUME SEPARATED BY A LINER OR COVER FROM
ADJACENT CELLS OR OTHER WASTES IN THE FACILITY.
2. SURFACE WATER RUN-ON. A REQUIREMENT FOR CONTROL OF SURFACE WATER
RUN-ON WAS NOT INCLUDED IN THE PROPOSED INTERIM STATUS STANDARDS. THIS
REQUIREMENT WAS SPECIFIED, HOWEVER, IN THE PROPOSED GENERAL STANDARDS IN
SECTIONS 250.43(B) AND 250.45-2 (B)(7). THE PURPOSE OF THIS STANDARD
WAS TO MINIMIZE THE AMOUNT OF SURFACE WATER ENTERING THE LANDFILL
FACILITY. RUN-ON CONTROLS PREVENT (1) EROSION, WHICH MAY DAMAGE THE
PHYSICAL STRUCTURE OF THE LANDFILL, (2) THE SURFACE DISCHARGE OF WASTES
IN SOLUTION OR SUSPENSION, AND (3) THE DOWNWARD, PERCOLATION OF RUN-ON
THROUGH WASTES, CREATING LEACHATE. CONTROL IS ACCOMPLISHED BY
CONSTRUCTING DIVERSION STRUCTURES TO PREVENT SURFACE WATER RUN-ON FROM
ENTERING THE ACTIVE PORTION OF THE LANDFILL FACILITY. A NOTE IN THE
PROPOSED REGULATION PROVIDED THAT NO DIVERSION STRUCTURES WERE REQUIRED
WHERE IT COULD BE DEMONSTRATED TO THE REGIONAL ADMINISTRATOR THAT LOCAL
TOPOGRAPHY WOULD PREVENT SURFACE WATER RUN-ON FROM ENTERING THE
FACILITY.
COMMENT WAS RECEIVED THAT THE PROPOSED REGULATION IMPLIED THAT ALL
RUN-ON WOULD HAVE TO BE DIVERTED FROM THE LANDFILL, AND THAT THE
REGULATIONS SHOULD SPECIFY THE CAPACITY OF THE DIVERSION STRUCTURE IN
TERMS OF THE USEFUL LIFE OF THE LANDFILL.
THE AGENCY BELIEVES THAT THE MAIN AREA OF CONCERN FOR PROTECTION OF
HUMAN HEALTH AND THE ENVIRONMENT IS THE ACTIVE PORTION OF THE LANDFILL,
NOT THE LANDFILL FACILITY AS A WHOLE (AS MAY HAVE BEEN SUGGESTED BY THE
LANGUAGE OF THE PROPOSED REGULATION). IT IS AT ACTIVE PORTIONS THAT
RUN-ON IS MOST LIKELY (1) TO SEEP INTO THE EXPOSED WASTE, CONTRIBUTING
TO THE FORMATION OF LEACHATE, OR (2) TO ERODE WASTES, OR CONSTITUENTS OF
THEM, AND CARRY THEM AWAY IN RUN-OFF. THE AGENCY REQUIRES IN THESE
REGULATIONS THAT ALL SURFACE WATER RUN-ON BE DIVERTED FROM ACTIVE
PORTIONS. DIVERSION OF RUN-ON MAY BE ACCOMPLISHED BY LOCATING THE
ACTIVE PORTION IN AREAS WHERE THE TOPOGRAPHY NATURALLY PREVENTS RUN-ON,
BY SLOPING OR CONTOURING THE LAND, OR BY CONSTRUCTING DITCHES, CULVERTS,
OR DIKES.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 059 OF 106
COSTLE D M ADMINISTRATOR
EPA
113423
REGULATION
THE CAPACITY OF DIVERSION STRUCTURES SHOULD BE DETERMINED BY THE
OWNER OR OPERATOR CONSIDERING SITE TOPOGRAPHY, SIZE OF DRAINAGE AREA,
AND SIZE OF THE ACTIVE PORTIONS.
COMMENTS WERE RECEIVED SUGGESTING THAT THE PROPOSED STANDARDS BE
MODIFIED TO ALLOW THE OWNER OR OPERATOR THE FLEXIBILITY TO EITHER DIVERT
SURFACE WATER RUN-ON OR COLLECT AND TREAT ALL OF THE SURFACE RUN-OFF, AS
LONG AS CLEAN WATER ACT EFFLUENT LIMITATIONS WERE COMPLIED WITH. THE
AGENCY DISAGREES. EPA BELIEVES THAT SUCH A STANDARD ALLOWS THE
UNNECESSARY INFILTRATION OF WATER INTO THE LANDFILL.
THE AGENCY HAS DETERMINED THAT DIVERSION OF RUN-ON IS APPROPRIATE FOR
INCLUSION IN THE INTERIM STATUS STANDARDS. RUN-ON CONTROL IS FOR ACTIVE
PORTIONS ONLY. THE AGENCY EXPECTS THAT RUN-ON DIVERSION STRUCTURES,
WHERE NEEDED BECAUSE OF TOPOGRAPHY, WILL MOST LIKELY BE EARTHEN DIKES OR
BERMS, OR DITCHES, WHICH CAN BE ERECTED WITH EARTH MOVING EQUIPMENT
COMMONLY FOUND AT LANDFILLS. THESE STRUCTURES CAN BE TEMPORARY, AND CAN
MOVE WITH THE ACTIVE PORTIONS AS MATERIAL IS ADDED TO THE LANDFILL.
SUCH STRUCTURES CAN BE DESIGNED AND MAINTAINED ADEQUATELY DURING INTERIM
STATUS WITHOUT CASE-BY-CASE REVIEW BY PERMITTING OFFICIALS.
A 12-MONTH DELAY IS ALLOWED FOR COMPLIANCE WITH THIS REQUIREMENT SO
THAT OPERATORS WILL HAVE ADEQUATE TIME TO MAKE ANY NECESSARY TOPOGRAPHIC
AND HYDROLOGIC DETERMINATIONS AND COMPLETE CONSTRUCTION.
3. CONTAMINATED SURFACE WATER RUN-OFF. REQUIREMENTS FOR COLLECTING
AND MANAGING CONTAMINATED SURFACE WATER RUN-OFF WERE NOT INCLUDED IN THE
PROPOSED INTERIM STATUS STANDARDS, BUT WERE PROPOSED IN THE GENERAL
STANDARDS IN SECTIONS 250.43(C) AND 250.45-2(B)(8). THEIR OBJECTIVE WAS
TO REDUCE THE POTENTIAL FOR OFF-SITE MIGRATION OF CONTAMINATED RUN-OFF
TO LAND OR TO WATERS OF THE UNITED STATES. THERE HAVE BEEN A NUMBER OF
DAMAGE INCIDENTS CAUSED BY MISMANAGED OR UNCONTROLLED CONTAMINATED
RUN-OFF FROM LANDFILLS. TEN OF THESE INCIDENTS ARE BRIEFLY DESCRIBED
AND REFERENCED IN THE LANDFILL BACKGROUND DOCUMENT. THESE DAMAGE CASES
DEMONSTRATE THAT RUN-OFF FROM ACTIVE PORTIONS OF HAZARDOUS WASTE
LANDFILLS CAN CAUSE SERIOUS ADVERSE IMPACTS TO LAND AND SURFACE WATERS.
IN CONTAMINATING STREAMS, RUN-OFF FROM LANDFILLS FREQUENTLY RESULTS IN
FISHKILLS AND DESTRUCTION OF OTHER AQUATIC LIFE. DURING THE PERIOD
1963-1774, FORTY-SEVEN SEPARATE FISHKILLS CAUSED BY RUN-OFF FROM WASTE
DISPOSAL WERE RECORDED BY EPA. BASED ON THIS EVIDENCE, EPA BELIEVES
THAT IT IS IMPERATIVE THAT RUN-OFF FROM ACTIVE PORTIONS OF HAZARDOUS
WASTE LANDFILLS BE CONTROLLED DURING THE INTERIM STATUS PERIOD.
FURTHERMORE, CONTROL OF RUN-OFF FROM ACTIVE PORTIONS OF HAZARDOUS
WASTE LANDFILLS IS PRESENTLY A WIDELY ACCEPTED AND RELATIVELY SIMPLE
PRACTICE. AS OF JANUARY 1979, ALL BUT TWO STATES SPECIFICALLY REQUIRE
IN THEIR SOLID OR HAZARDOUS WASTE REGULATIONS CONTROL OF RUN-OFF FROM AT
LEAST THE ACTIVE PORTIONS OF ALL OFF-SITE LANDFILLS.
RUN-OFF CONTROL IS ACCOMPLISHED BY (1) MINIMIZING RUN-OFF AND
(2) COLLECTING AND MANAGING RUN-OFF FROM ACTIVE PORTIONS. RUN-OFF
IS MINIMIZED BY (1) PREVENTING RUN-ON, (2) MINIMIZING THE SIZE OF
THE ACTIVE PORTION, AND (3) PREVENTING DISPOSAL OF LIQUID WASTES
IN THE LANDFILL.
THERE ARE TWO BASIC TYPES OF LANDFILL OPERATIONS: TRENCH METHOD AND
AREA FILL METHOD. BY DESIGN, ALMOST ALL TRENCHES, AND AREA FILLS USING
DEPRESSIONS OR PITS, CONTROL RUN-OFF BECAUSE OF SURFACE CONTOURS (I.E.,
LIQUIDS THAT COME INTO CONTACT WITH THE WASTE RUN-OFF). AREA FILLS
WHICH DO NOT USE DEPRESSIONS CAN BE OPERATED BY BUILDING A BERM OR DIKE
ON THE LOW ELEVATION SIDE TO CONTAIN ANY RUN-OFF. HOWEVER, WHEN
LANDFILLS USING EITHER THE TRENCH OR AREA METHODS BECOME LARGE AND
SUBSTANTIALLY ABOVE GRADE, BOTH RUN-OFF AND LEACHATE SEEPS, WHICH OFTEN
OCCUR ON THE OUTER SLOPES OF THE FILL, NEED TO BE COLLECTED. RUN-OFF
WHICH DOES EMERGE FROM ACTIVE PORTIONS MAY BE COLLECTED BY DITCHES,
BERMS, DIKES, AND CULVERTS WHICH DRECT IT (SOMETIMES BY SUMP PUMP) TO
SURFACE IMPOUNDMENTS, BASINS, TANKS, OR TREATMENT FACILITIES. THESE
COLLECTION DEVICES MAY CONSIST OF TEMPORARY STRUCTURES AROUND ACTIVE
PORTIONS. SINCE RUN-OFF USUALLY HAS BEEN IN CONTACT WITH WASTE OR
LEACHATE SEEPS FROM ACTIVE PORTIONS, AND SINCE RUN-OFF SOMETIMES IF
COLLECTED VIA A LEACHATE COLLECTION SYSTEM, IT IS USUALLY CONTAMINATED.
THUS, IT IS USUALLY IMPOSSIBLE TO DIFFERENTIATE BETWEEN RAIN WATER
RUN-OFF AND LEACHATE RUN-OFF AT THE ACTIVE PORTION OF A LANDFILL.
BECAUSE OF THIS, THE PROPOSED DEFINITION OF "RUN-OFF", WHICH WAS "THAT
PORTION OF PRECIPITATION THAT DRAINS OVER LAND . . ." HAS BEEN REVISED
TO "ANY RAINWATER, LEACHATE, OR OTHER LIQUID THAT DRAINS OVER LAND . .
.". THIS CHANGE INDICATES THAT MORE THAN JUST PRECIPITATION MUST BE
COLLECTED.
ONCE COLLECTED, A NUMBER OF OPTIONS EXIST FOR TREATING AND DISPOSING
OF RUN-OFF. THESE ARE THE SAME OPTIONS WHICH EXIST FOR MANAGING LIQUID
WASTES AND LEACHATE AND INCLUDE DEEP WELL INJECTION, LAND TREATMENT,
TREATMENT IN SURFACE IMPOUNDMENTS (EVAPORATION, AERATION, CHEMICAL
TREATMENT, ETC.), DEWATERING OR MIXING WITH AN ABSORBENT MATERIAL AND
DISPOSAL IN THE LANDFILL, PERCOLATION THROUGH A FILTERING OR ATTENUATION
MEDIUM (E.G., CHARCOAL, CLAY, SOIL, SAND), OR DISCHARGE TO A SEWER OR
OTHER TREATMENT FACILITY.
THE PROPOSED LANDFILL STANDARDS REQUIRED THAT IF SURFACE WATER CAME
INTO CONTACT WITH THE ACTIVE PORTIONS OF A FACILITY, IT WAS TO BE
COLLECTED AND MANAGED AS A HAZARDOUS WASTE UNLESS IT WAS ANALYZED AND
FOUND NOT TO BE HAZARDOUS.
THE AGENCY RECEIVED ESSENTIALLY NO OBJECTIONS TO THE PROPOSED
REQUIREMENT THAT LANDFILL RUN-OFF BE COLLECTED AND TREATED IN SOME
FASHION. MOST OF THE COMMENTS ON THE PROPOSED STANDARDS CONCERNED THE
CAPACITY OF THE TREATMENT SYSTEMS OR THE FINAL DISPOSITION OF THE
RUN-OFF. THESE COMMENTS ARE DISCUSSED IN THE BACKGROUND DOCUMENT. THE
CURRENT REGULATION DOES NOT LIMIT THE METHOD OF TREATMENT OF RUN-OFF.
THE REGULATION REQUIRES RUN-OFF FROM ACTIVE PORTIONS TO BE COLLECTED.
THE COLLECTED RUN-OFF IS A SOLID WASTE FROM AN INDUSTRIAL ACTIVITY (THE
OPERATION OF THE LANDFILL) AND THE OWNER OR OPERATOR MUST DETERMINE
WHETHER IT IS A HAZARDOUS WASTE IN ACCORDANCE WITH SECTION 262.11 OF
THIS CHAPTER. IF THE COLLECTED RUN-OFF IS A HAZARDOUS WASTE IT MAST BE
MANAGED AS A HAZARDOUS WASTE. EVEN IF IT IS NOT A HAZARDOUS WASTE, GOOD
MANAGEMENT PRACTICES MAY STILL REQUIRE SOME DEGREE OF TREATMENT OR USE
OF OTHER TECHNIQUES AS PREVIOUSLY DISCUSSED, ALTHOUGH SUCH PRACTICES ARE
NOT REQUIRED BY THESE REGULATIONS. A 12 MONTH DELAY FOR COMPLIANCE WITH
THESE REGULATIONS IS GIVEN SO THAT EXISTING FACILITIES MAY CONSTRUCT NEW
RUN-OFF CONTROL SYSTEMS OR UPGRADE EXISTING SYSTEMS, INCLUDING THOSE
FROM RUN-OFF TREATMENT AND DISPOSAL. IF COLLECTED RUN-OFF IS DISCHARGED
TO WATERS OF THE UNITED STATES, OWNERS OR OPERATORS OF FACILITIES MUST
HAVE OR APPLY FOR AN NPDES PERMIT UNDER THE CLEAN WATER ACT.
4. WIND DISPERSAL. DISPERSAL OF LANDFILLED HAZARDOUS WASTES BY WIND
IS NOT OFTEN A PROBLEM. THE AGENCY'S MAJOR CONCERN IN REQUIRING THE
CONTROL OF WIND DISPERSAL IS LARGE WASTE PILES WHICH CONSTITUTE DISPOSAL
AND THUS COME UNDER THE LANDFILL REGULATIONS. THE AGENCY IS AWARE OF AT
LEAST ONE CASE IN WHICH WIND DISPERSAL FROM A PILE OF ASBESTOS WASTES
CREATED A HEALTH RISK. IT THEREFORE SEEMS PRUDENT TO REQUIRE THAT,
WHERE LANDFILLED HAZARDOUS WASTE IS SUBJECT TO WIND DISPERSAL, THE
LANDFILL BE MANAGED SO THAT WIND DISPERSAL IS CONTROLLED. APPROPRIATE
METHODS MAY VARY FROM WASTE TO WASTE, AND THE AGENCY BELIEVES THAT THE
OWNER OR OPERATOR OF THE FACILITY IS BEST ABLE TO DEVELOP AN ADEQUATE,
COST-EFFECTIVE TECHNIQUE TO MEET THIS REQUIREMENT.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 060 OF 106
COSTLE D M ADMINISTRATOR
EPA
113424
REGULATION
THIS REQUIREMENT WAS NOT PROPOSED FOR INCLUSION IN EITHER THE INTERIM
OR GENERAL STANDARDS. COMMENTS AND MEETINGS FOLLOWING PUBLICATION OF
THE PROPOSED REGULATIONS BROUGHT TO LIGHT THE FACT THAT PILES ARE
SOMETIMES USED FOR STORING AND DISPOSING OF WASTES, SOME OF WHICH MAY BE
HAZARDOUS. SUBPART L (WASTE PILES) GREW OUT OF THESE COMMENTS, AND ALSO
INCLUDES A REQUIREMENT FOR CONTROLLING WIND DISPERSAL. THE AGENCY
BELIEVES THAT THIS REQUIREMENT SHOULD TYPICALLY NOT REQUIRE MAJOR
CAPITAL EXPENDITURES, DOES NOT REQUIRE CASE-BY-CASE DETERMINATIONS BY
THE REGIONAL ADMINISTRATOR, AND CAN BE ACCOMPLISHED WITHIN SIX MONTHS.
IT IS THEREFORE APPROPRIATE FOR INCLUSION IN THE INTERIM STATUS
STANDARDS. SINCE IT WAS NOT PROPOSED, IT IS BEING PROMULGATED INTERIM
FINAL, AND THE AGENCY SOLICITS COMMENTS ON IT.
5. SURVEYING AND RECORDKEEPING. RECORDING THE LOCATION OF EACH
HAZARDOUS WASTE TYPE WITHIN A LANDFILL CELL WILL HELP ENSURE THAT THIS
INFORMATION IS AVAILABLE FOR PROPER LANDFILL OPERATION, CLOSURE, AND
DAMAGE ASSESSMENT, WHEN NECESSARY. FOR EXAMPLE, THIS INFORMATION IS
USEFUL IN MANAGING POTENTIALLY INCOMPATIBLE WASTES AND MATERIALS, AND
WILL HELP DEAL WITH EMERGENCIES, SUCH AS FIRES AND HELP IN LOCATING
SOURCES OF CONTAMINATION. METHODS OF CORRECTION AND POTENTIAL FOR
FURTHER DAMAGE MAY ALSO BE MORE READILY IDENTIFIED.
THE MAJOR ISSUE RAISED IN THE COMMENTS WAS AN OBJECTION TO THE
PROPOSED REQUIREMENTS THAT EXACT LOCATIONS OF WASTE WITHIN EACH CELL BE
RECORDED. THE AGENCY AGREES THAT THIS REQUIREMENT MAY HAVE BEEN OVERLY
RESTRICTIVE AS APPLIED TO ALL WASTES. THE REGULATION NOW ONLY REQUIRES
RECORDING THE WASTE'S APPROXIMATE LOCATION WITHIN A CELL. HOWEVER, THE
OWNER OR OPERATOR MUST RECORD THE LOCATION OF EACH WASTE TYPE WITH
SUFFICIENT ACCURACY TO ENABLE PROPER MANAGEMENT OF INCOMPATIBLE WASTES,
AND LATER TREATMENT, EXCAVATION, OR OTHER REMEDIAL ACTION, IF NECESSARY.
FOR EXAMPLE, WITH AN EXTREMELY MOBILE WASTE THIS MAY MEAN RECORDING ITS
EXACT LOCATION; FOR A LANDFILL OR LANDFILL CELL WHICH RECEIVES ONLY A
FEW TYPES OF WASTES, IT MAY MEAN MERELY RECORDING THE APPROXIMATE
LOCATION OF THE DEMARCATIONS BETWEEN WASTES. EPA SUGGESTS THE USE OF A
THREE-DIMENSIONAL GRID SYSTEM, REFERENCING WASTE TYPE LOCATION ON A MAP
WHICH IS KEYED TO PERMANENTLY SURVEYED BENCHMARKS. THE SIZE OF THE
UNITS IN THE GRID SHOULD BE A FUNCTION OF THE NUMBER OF WASTE TYPES,
THEIR AMOUNTS AND THE NUMBER OF LOCATIONS OF EACH TYPE.
6. LANDFILL CLOSURE. AT LEAST 180 DAYS BEFORE LANDFILL CLOSURE
DURING THE INTERIM STATUS PERIOD, THE OWNER OR OPERATOR MUST SUBMIT TO
THE REGIONAL ADMINISTRATOR, FOR HIS APPROVAL, MODIFICATION, OR
DISAPPROVAL, A DETAILED PLAN DESCRIBING THE MANNER IN WHICH THE LANDFILL
WILL BE CLOSED AND MAINTAINED DURING THE POST-CLOSURE PERIOD. (SEE THE
PREVIOUS PREAMBLE DISCUSSION ON CLOSURE AND POST-CLOSURE CARE).
A FINAL COVER MUST BE PLACED OVER THE LANDFILL AT CLOSURE. THE
CLOSURE PLAN MUST ADDRESS THE FUNCTIONS AND SPECIFY THE DESIGN OF THE
FINAL COVER. IT IS NECESSARY TO PLACE APPROPRIATE COVER ON A LANDFILL
IN ORDER TO CONTROL THE INFILTRATION OF MOISTURE THAT COULD INCREASE
LEACHING, AND TO PREVENT EROSION OR ESCAPE OF WASTES, WASTE
CONSTITUTENTS, OR CONTAMINATED SOIL.
THE PROPOSED STANDARDS INCLUDED SPECIFIC REQUIREMENTS REGARDING THE
TYPE, DEPTH, PERMEABILITY, AND NUMBER OF SOIL LAYERS REQUIRED FOR THE
FINAL COVER. THEY ALSO INCLUDED SPECIFIC QUANTITATIVE LIMITS ON GRADE
(SLOPE) AND TERRACING OF THE COVER TO PREVENT EROSION.
EPA RECEIVED NUMEROUS COMMENTS OBJECTING TO THESE SPECIFIC
REQUIREMENTS. COMMENTERS SUGGESTED THAT DIFFERENT COMBINATIONS OF COVER
MATERIALS, THICKNESSES, AND PERMEABILITIES COULD ACHIEVE EQUIVALENT
RESULTS, AND THAT GREATER FLEXIBILITY WAS NEEDED TO ADDRESS
SITE-SPECIFIC SITUATIONS. NUMEROUS COMMENTERS SUGGESTED THAT THE
PROPOSED 6-INCH CLAY COVER WAS INADEQUATE. SIMILAR OBJECTIONS WERE
RAISED REGARDING THE FINAL GRADE AND TERRACING REQUIREMENTS.
THE PROPOSED REGULATION INCLUDED A VARIANCE THAT ALLOWED ALTERNATE
COVER DESIGNS TO BE SUBSTITUTED AS LONG AS THEY PROVIDED EQUIVALENT
PERFORMANCE, AND THUS THERE WAS SOME FLEXIBILITY. HOWEVER, THE PROPOSED
VARIANCES WOULD NOT HAVE ADDRESSED CONCERNS OVER THE BASIC LEVEL OF
CONTROL SPECIFIED, FOR EXAMPLE, A 6-INCH CLAY COVER.
THE AGENCY BELIEVES THAT THE COMMENTERS HAVE MADE VALID POINTS. THE
SPECIFIC LIMITS PROPOSED ARE NOT APPROPRIATE FOR ALL SITUATIONS. THE
CONDITIONS AT EACH SITE SHOULD WEIGH MORE HEAVILY THAN PERHAPS THE
PROPOSED REGULATION WOULD ALLOW IN DETERMING AN APPROPRIATE COVER
REQUIREMENT. THE FINAL REGULATIONS PROVIDE THIS FLEXIBILITY BY
REQUIRING THAT CERTAIN OBJECTIVES BE ADDRESSED IN DEVELOPING A CLOSURE
PLAN AND DESIGNING A FINAL COVER. THE SPECIFIED OBJECTIVES ARE: (1)
CONTROL OF POLLUTANT MIGRATION FROM THE FACILITY VIA GROUND WATER,
SURFACE WATER, AND AIR, (2) CONTROL OF SURFACE WATER INFILTRATION,
INCLUDING PREVENTION OF POOLING, AND (3) PREVENTION OF EROSION.
THE REGULATION ALSO LISTS A MINIMUM SET OF TECHNICAL FACTORS WHICH
THE OWNER OR OPERATOR MUST CONSIDER IN ADDRESSING THE CONTROL
OBJECTIVES. WITH REGARD TO COVER DESIGN CHARACTERISTICS, THESE FACTORS
INCLUDE COVER MATERIALS, FINAL SURFACE CONTOURS, POROSITY AND
PERMEABILITY, THICKNESS, SLOPE AND LENGTH OF RUN OF SLOPE, AND TYPE OF
VEGETATION. THE COVER DESIGN SHOULD TAKE INTO ACCOUNT THE NUMBER OF
LAYERS, AND THE INDIGENOUS VEGETATION. IT SHOULD AVOID OR MAKE
ALLOWANCES FOR DEEP-ROOTED VEGETATION, AND PREVENT WATER FROM POOLING.
THE DESIGN WILL DEPEND ON THE AVAILABILITY AND CHARACTERISTICS OF
ON-SITE OR NEARBY SOILS, AND A NUMBER OF OTHER SITE-SPECIFIC FACTORS.
THE FINAL COVER DESIGN COULD SIMPLY BE THE PLACEMENT, COMPACTION,
GRADING, SLOPING, AND VEGETATION OF ON-SITE SOILS, OR COULD BE A COMPLEX
DESIGN SUCH AS A COMBINATION OF COMPACTED CLAY OR MEMBRANE LINER PLACED
OVER A GRADED AND SLOPED BASE AND COVERED BY TOPSOIL AND VEGETATION.
THE FINAL REGULATION REQUIRES (IN SUBPART G) THE APPROVAL,
DISAPPROVAL OR MODIFICATION OF THE CLOSURE PLAN BY THE REGIONAL
ADMINISTRATOR, AFTER OPPORTUNITY FOR PUBLIC COMMENT. THIS PROCESS IS
NECESSARY TO ASSURE THAT CLOSURE PLANS WILL ACHIEVE THE OBJECTIVES
SPECIFIED WITH AN ADEQUATE DEGREE OF CONFIDENCE.
BECAUSE IT HAS BEEN MODIFIED SUBSTANTIALLY, THE REGULATION ON
LANDFILL CLOSURE IS BEING PROMULGATED INTERIM FINAL AND THE AGENCY WILL
CONSIDER ADDITIONAL COMMENTS ON IT. MANY COMMENTS ON THE PROPOSED
REGULATION SEVERELY CRITICIZED IT FOR BEING TOO INFLEXIBLE. THE AGENCY
BELIEVES THAT THE PRESENT REGULATION RESPONDS TO THESE COMMENTS BY
CREATING AN EXTREMELY FLEXIBLE SYSTEM UNDER WHICH ALL PERTINENT
CHARACTERISTICS OF AN INDIVIDUAL FACILITY CAN BE CONSIDERED IN
DETERMINING HOW IT SHOULD BE CLOSED. SINCE THE SYSTEM LEAVES SO MUCH
LATITUDE FOR THE CREATION OF INDIVIDUAL CLOSURE PLANS, THOSE PLANS WILL
NEED TO BE REVIEWED ON A CASE-BY-CASE BASIS BY REGIONAL ADMINISTRATOR TO
ASSURE THAT THE OBJECTIVES OF THE REGULATION ARE ACHIEVED.
THE AGENCY BELIEVES THAT THE IMPORTANCE OF PROPER CLOSURE JUSTIFIES
THIS INTERACTION WITH THE REGIONAL ADMINISTRATOR DURING THE INTERIM
STATUS PERIOD. THE CLOSURE AND POST-CLOSURE REQUIREMENTS ARE ESSENTIAL
FOR PROTECTION OF HUMAN HEALTH AND THE ENVIRONMENT IN THE LONG-TERM
(AFTER POST-CLOSURE CARE PERIOD).
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 061 OF 106
COSTLE D M ADMINISTRATOR
EPA
113425
REGULATION
UNLESS CERTAIN PRECAUTIONS, SUCH AS A STABLE AND PROPERLY DESIGNED
COVER AND FUTURE SITE USE CONTROLS, ARE TAKEN, THERE IS A HIGH
LIKELIHOOD OF FUTURE GROUND WATER, SURFACE WATER, OR AIR CONTAMINATION
OR DIRECT EXPOSURE OF THE PUBLIC TO HAZARDOUS WASTE. OPERATING EXISTING
LEACHATE COLLECTION SYSTEMS, GAS CONTROL SYSTEMS AND GROUND-WATER
MONITORING SYSTEMS THROUGHOUT THE POST-CLOSURE CARE PERIOD ARE ESSENTIAL
TO ELIMINATING FUTURE ENVIRONMENTAL PROBLEMS AND DETERMINING WHEN
POST-CLOSURE CARE CAN BE TERMINATED.
7. POST-CLOSURE CARE. IN ORDER FOR THE FINAL COVER TO SATISFY THE
SPECIFIED OBJECTIVES, IT MUST BE PROPERLY MAINTAINED FOLLOWING CLOSURE.
THIS IS ALSO TRUE OF CERTAIN MONITORING AND CONTROL MEASURES, SUCH AS
GROUND-WATER MONITORING SYSTEMS.
EPA RECEIVED FEW COMMENTS ON THE PROPOSED POST-CLOSURE CARE
REQUIREMENTS. NONETHELESS, SOME MODIFICATIONS HAVE BEEN MADE TO
ACCOMMODATE CHANGES MADE IN OTHER SECTIONS OF THE REGULATIONS.
POST-CLOSURE MAINTENANCE OF A LEACHATE MONITORING SYSTEM (UNSATURATED
ZONE MONITORING) IS NOT REQUIRED FOR ALL FACILITIES BECAUSE SUCH
MONITORING SYSTEMS ARE NO LONGER REQUIRED. (SEE THE DISCUSSION ON
SUBPART G REQUIREMENTS.) A REQUIREMENT THAT EXISTING LEACHATE COLLECTION
AND REMOVAL SYSTEMS BE MAINTAINED, HOWEVER, HAS BEEN SUBSTITUTED.
HAZARDOUS LEACHATE MAY CONTINUE TO BE GENERATED WITHIN THE LANDFILL LONG
AFTER THE SITE IS CLOSED, EVEN WITH A RELATIVELY IMPERMEABLE COVER. THE
AGENCY BELIEVES THAT, IN ORDER FOR AN INSTALLED LEACHATE COLLECTION
SYSTEM TO ACHIEVE ITS PURPOSE, LEACHATE MUST BE REMOVED AS IT IS
GENERATED, EVEN AFTER CLOSURE.
THE ONE POST-CLOSURE REQUIREMENT WHICH DID GENERATE A NUMBER OF
COMMENTS WAS THE RESTRICTION AGAINST CONSTRUCTING BUILDINGS ON CLOSED
LANDFILLS WHERE RADIOACTIVE WASTES WERE DISPOSED OF. THE AGENCY AGREES
WITH COMMENTERS TO THE EXTENT THAT CONCERN ABOUT RADIATION (URANIUM AND
PHOSPHATE WASTES) WAS THE BASIS FOR THIS REGULATION AND THAT SUCH
BUILDING RESTRICTIONS SHOULD BE PLACED IN REGULATIONS DEALING
SPECIFICALLY WITH THOSE WASTES. EPA EXPECTS TO PROMULGATE REQUIREMENTS
FOR SUCH WASTES IN ITS PHASE II REGULATIONS.
OTHER COMMENTERS SUGGESTED THAT ALL CONSTRUCTION OR OTHER ACTIVITIES
WHICH WOULD DAMAGE THE FINAL COVER SHOULD BE PROHIBITED. THE AGENCY
CONCURS, IN GENERAL, AND HAS ADDED A REQUIREMENT IN SECTION 265.117(C)
THAT ACTIVITIES WHICH COULD DISTURB THE INTEGRITY OF THE FINAL COVER OR
ANY LINERS OR THE FUNCTION OF THE MONITORING SYSTEMS, ARE NOT ALLOWED
WITHOUT THE REGIONAL ADMINISTRATOR'S APPROVAL UNDER SPECIFIED CRITERIA.
WHILE THE POST-CLOSURE CARE REGULATION HAS NOT CHANGED RADICALLY FROM
THE PROPOSED REGULATION, IT IS BEING PROMULGATED INTERIM FINAL ALONG
WITH THE CLOSURE REGULATION BECAUSE THE TWO FROM AN INTEGRATED PACKAGE.
COMMENTS WILL BE CONSIDERED ON THE POST-CLOSURE CARE REGULATION ALONG
WITH THE CLOSURE REQUIREMENTS.
8. IGNITABLE OR REACTIVE WASTE. THE PROPOSED REGULATIONS PROHIBITED
DISPOSING OF IGNITABLE OR REACTIVE WASTE IN A HAZARDOUS WASTE LANDFILL
UNLESS CERTAIN CONDITIONS WERE MET: AIRBORNE CONTAMINANTS COULD NOT
EXCEED A SPECIFIED CONCENTRATION AND THERE COULD BE NO DAMAGE TO THE
STRUCTURAL INTEGRITY OF THE FACILITY.
SEVERAL COMMENTERS CLAIMED THAT THIS PROVISION "BANNED" LANDFILLING
OF IGNITABLE OR REACTIVE WASTE. THE COMMENTERS SUGGESTED THAT THESE
WASTES CAN BE PLACED IN A LANDFILL IN A WAY, SUCH AS BY BLENDING WITH
SOIL OR OTHER MATERIALS, THAT ELIMINATES OR MINIMIZES THE DANGER OF
FIRES OR EXPLOSIONS.
THE FINAL REGULATION NOW REQUIRES THAT IGNITABLE OR REACTIVE WASTES
BE TREATED OR MIXED BEFORE OR IMMEDIATELY AFTER BEING LANDFILLED SO THAT
THEY ARE NO LONGE IGNITABLE OR REACTIVE. MIXING THE WASTE WITH SOIL OR
OTHER MATERIAL BEFORE, DURING, OR IMMEDIATELY AFTER THE WASTE IS PLACED
IN THE LANDFILL IS ALLOWED IF THE RESULTING MIXTURE IS NEITHER IGNITABLE
NOR REACTIVE. THIS TREATMENT MUST MEET THE GENERAL REQUIREMENTS FOR
HANDLING IGNITABLE, REACTIVE, OR INCOMPATIBLE WASTES IN SECTION
265.17(B). AS EXPLAINED PREVIOUSLY, THE PROVISION IN THE PROPOSED
REGULATION CONCERNING VOLATILITY HAS BEEN DEFERRED.
9. INCOMPATIBLE WASTES. INCOMPATIBLE WASTES OR MATERIALS CAN REACT
WHEN THEY COME IN CONTACT WITH EACH OTHER, RESULTING IN THE SUBSTANCES
OR REACTIONS LISTED IN APPENDIX V, SUCH AS FIRES, EXPLOSIONS, OR
FORMATION OF TOXIC GAS. SUCH CONTACT CAN BE PREVENTED BY PLACING
INCOMPATIBLE WASTES IN SEPARATE LANDFILL CELLS, AS PROPOSED IN THE
LANDFILL REGULATIONS.
COMMENTERS SUPPORTED THIS CONCEPT: SOME SUGGESTED SPECIFIC DEGREES
OF SEPARATION, E.G., CERTAIN SOIL THICKNESS, OR SEPARATION BASED ON
WASTE PROPERTIES. THE AGENCY FOUND NO BASIS FOR ANY SPECIFIC WASTE
SEPARATION REQUIREMENT BECAUSE SO MANY SITE-SPECIFIC VARIABLES ARE
PERTINENT, SUCH AS CHARACTERISTICS OF THE LINER OR SEPARATION MATERIAL,
(E.G., PERMEABILITY AND THICKNESS), SPECIAL RELATIONSHIP OF CELLS (E.G.,
ABOVE OR ON THE SIDE OF THE OTHER), COVER MATERIAL, AND WASTE
CHARACTERISTICS. THEREFORE, NO SPECIFIC SEPARATION REQUIREMENT IS
INCLUDED IN THE FINAL REGULATION.
COMMENTS RECEIVED ON OTHER SECTIONS OF THE PROPOSED REGULATIONS
INDICATED THAT POTENTIALLY INCOMPATIBLE WASTES CAN BE PREMIXED OR
TREATED BEFORE OR DURING DISPOSAL SO THAT THEY ARE NO LONGER
INCOMPATIBLE. THEREFORE, THE FINAL REGULATION HAS BEEN REVISED TO ALLOW
THE PLACEMENT OF INCOMPATIBLE WASTES IN THE SAME CELL, IF THEY WILL MEET
THE GENERAL REQUIREMENTS FOR INCOMPATIBLE WASTES IN SECTION 265.17(B).
10. BULK LIQUID WASTE. THE DISPOSAL OF LIQUID HAZARDOUS WASTE, BOTH
BULK AND CONTAINERIZED, WAS THE MOST CONTROVERSIAL AREA OF THE PROPOSED
LANDFILL REGULATIONS. THE PROPOSED REGULATION SPECIFIED THAT BULK
LIQUID, SEMI-SOLID, AND SLUDGE WASTES MUST NOT BE DISPOSED OF IN A
LANDFILL, UNLESS THEY WERE PRETREATED OR TREATED IN THE LANDFILL "SO
THAT A NON-FLOWING CONSISTENCY IS ACHIEVED TO ELIMINATE THE PRESENCE OF
FREE LIQUIDS PRIOR TO FINAL DISPOSAL IN A LANDFILL." THE PURPOSE OF THIS
PROPOSED REGULATION WAS TO REDUCE THE PRESENCE OF LIQUID WASTES AND FREE
LIQUIDS IN A LANDFILL.
LIQUID WASTES AND FREE LIQUIDS CAN MIGRATE THROUGH A LANDFILL,
DISSOLVING OR MOBILIZING TOXIC SUBSTANCES IN THE PROCESS. IN OTHER
WORDS, LIQUID IN A LANDFILL USUALLY BECOMES A TRANSPORT AND LEACHING
MEDIUM. THE RESULTANT LEACHATE PRODUCES A HYDRAULIC HEAD GREATER THAN
THAT RESULTING FROM PRECIPITATION ALONE. THE ADDITIONAL LIQUIDS,
LEACHING, AND HEAD CAN INCREASE THE AMOUNT AND RATE OF MOVEMENT OF
HAZARDOUS CONTAMINANTS FROM THE LANDFILL TO GROUND WATER.
COMMENTS ON THE PROPOSED REGULATION RANGED FROM SUGGESTIONS THAT
LIQUID WASTES SHOULD BE CATEGORICALLY BANNED FROM LANDFILLS TO
SUGGESTIONS THAT THERE SHOULD BE NO RESTRICTIONS PLACED ON LANDFILLING
OF LIQUID WASTES. THERE WERE ALSO COMMENTS THAT THE REGULATIONS SHOULD
ALLOW ABSORPTION OF LIQUID WASTES BY MUNICIPAL REFUSE AND ALLOW IN-SITU
ABSORPTION VIA A WELL OR PIT IN THE LANDFILL.
THE AGENCY BELIEVES THAT THERE ARE CONTROLLED CONDITIONS UNDER WHICH
LIQUIDS IN LANDFILLS CAN BE TOLERATED. FOR EXAMPLE, WITH A SECURE LINER
(CHEMICALLY AND PHYSICALLY RESISTANT TO THE LIQUIDS AND OF LOW
PERMEABILITY) AND A LEACHATE COLLECTION AND REMOVAL SYSTEM, LEACHATE CAN
BE REMOVED FROM ABOVE THE LINER CONTINUOUSLY TO PREVENT BUILD-UP OF A
HYDRAULIC HEAD. THE LOW PERMEABILITY OF THE LINER SHOULD RESULT IN NO
MIGRATION OR A VERY SLOW RATE OF MIGRATION THROUGH IT. THE COLLECTED
LEACHATE CAN THEN BE EITHER TREATED AND DISPOSED OF IN THE FACILITY, OR
OTHERWISE DISPOSED OF. THUS, IF A LANDFILL HAS A LEACHATE COLLECTION
SYSTEM, IN-SITU ABSORPTION CAN BE ENVIRONMENTALLY ACCEPTABLE. THE FINAL
REGULATION THEREFORE ALLOWS IN-SITU ABSORPTION OF BULK LIQUID WASTES
PROVIDED THE LANDFILL HAS A CHEMICALLY AND PHYSICALLY RESISTANT LINER
AND A FUNCTIONING LEACHATE REMOVAL SYSTEM, AND PROVIDED THE CAPACITY TO
REMOVE THE HYDRAULIC HEAD IS NOT EXCEEDED.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 062 OF 106
COSTLE D M ADMINISTRATOR
EPA
113426
REGULATION
WHERE A LANDFILL DOES NOT HAVE A LEACHATE COLLECTION AND REMOVAL
SYSTEM, HOWEVER, LIQUIDS IN THE LANDFILL WILL EVENTUALLY MIGRATE AND
WILL USUALLY CARRY POLLUTANTS OUT OF THE LANDFILL AND INTO GROUND WATER.
THE MANY INCIDENTS OF GROUND-WATER CONTAMINATION FROM POORLY OPERATED
HAZARDOUS WASTE LANDFILLS TESTIFY THAT THIS IS A COMMON PROBLEM. IN
ADDITION, WHEN LIQUID WASTES ARE DISPOSED OF DIRECTLY INTO A LANDFILL
WITHOUT ASSURING ABSORPTION, THERE IS NO WAY OF KNOWING WHETHER THEY ARE
LARGELY BEING ABSORBED AND HELD BY SOLIDS IN THE LANDFILL, OR ARE
PASSING THROUGH RELATIVELY QUICKLY. LIQUID MIGRATION CAN, HOWEVER, BE
GREATLY REDUCED IF LIQUID WASTES AND WASTES CONTAINING FREE LIQUIDS ARE
TREATED BEFORE BEING LANDFILLED, AS BY MIXING WITH ABSORBENT MATERIALS,
SO THAT FREE LIQUIDS ARE NO LONGER PRESENT. THE REGULATIONS REQUIRE
SUCH TREATMENT IN LANDFILLS THAT DO NOT HAVE APPROPRIATE LEACHATE
COLLECTION AND REMOVAL SYSTEMS. TREATING THE LIQUID WASTE BEFORE IT IS
LANDFILLED GIVES VISUAL CONTROL OF THE LIQUID TO ABSORBENT RATIO, ALLOWS
TESTING TO CONFIRM ABSORBENT CAPACITY, AND ASSURES SLOW RELEASE; THESE
ARE NOT POSSIBLE WHEN IN-SITU ABOSRPTION IS PRACTICED. EXAMPLES OF
ABSORBENT MATERIALS WHICH MAY BE ACCEPTABLE INCLUDE SOIL, FLY ASH, AND
CEMENT KILN DUST. EPA DISCOURAGES THE USE OF BIODEGRADABLE MUNICIPAL
WASTE AS AN ABSORBENT UNTIL STUDIES PROVE ITS LONG-TERM EFFECTIVENESS.
A NUMBER OF COMMENTERS ASKED FOR DEFINITIONS OF THE TERMS
"NON-FLOWING", "SEMI-SOLID", "SLUDGE", OR "FREE LIQUIDS", WHICH WERE
USED TO DESCRIBE HAZARDOUS WASTES IN THE PROPOSED REGULATIONS. A NUMBER
OF SUGGESTIONS WERE GIVEN AS TO HOW OR HOW NOT TO DEFINE THESE TERMS.
AFTER REVIEW OF THESE COMMENTS, EPA HAS DECIDED TO USE THE TERM "FREE
LIQUIDS", DEFINED AS "LIQUIDS WHICH READILY SEPARATE FROM THE SOLID
PORTION OF A WASTE UNDER AMBIENT TEMPERATURE AND PRESSURE." THIS TERM
AND MEANING BEST REFLECT THE USE TO WHICH THIS TERM IS PUT, WHICH IS TO
DISTINGUISH WHEN A WASTE CONTAINS LIQUIDS WHICH WILL READILY FLOW FROM
THE WASTE IN A LANDFILL TO PRODUCE LEACHATE. FOR SLUDGES OR SEMI-SOLIDS
WHICH ARE NOT OBVIOUSLY LIQUIDS, THE FOLLOWING TEST MAY BE USED TO
DETERMINE IF THEY CONTAIN "FREE LIQUIDS." PLACE A ONE TO FIVE KILOGRAM
(2.2 TO 11.0 LBS) SAMPLE OF WASTE ON A LEVEL OR SLIGHTLY SLOPING PLATE
OF GLASS OR OTHER SIMILARLY FLAT AND SMOOTH SOLID MATERIAL FOR AT LEAST
FIVE MINUTES. IF A LIQUID PHASE SEPARATION IS OBSERVED, THE WASTE
CONTAINS "FREE LIQUIDS." EPA FEELS THIS TEST PROVIDES A PRACTICAL WAY TO
TEST SLUDGES AND SIMI-SOLIDS AND HELPS CLARIFY THE MEANING OF FREE
LIQUIDS UNTIL A MORE RIGOROUS TEST IS DEVISED.
THE TEST IS INTENDED TO SIMULATE, IN A SIMPLE WAY, THE BEHAVIOR OF
SEMI-SOLID WASTES PLACED ON THE SURFACE OF A LANDFILL. IF LIQUIDS CAN
BE OBSERVED AS A SEPARATE PHASE DRAINING OVER AN IMPERMEABLE SUBSTRATE
FROM THE BASE OF A SMALL SAMPLE OF THE WASTE, SUCH LIQUIDS CAN ALSO BE
EXPECTED TO DRAIN FROM THE WASTE ITSELF WHEN IT IS PLACED ON THE SURFACE
OF THE LANDFILL, AND WILL BE FREE TO MIGRATE INTO THE LANDFILL MUCH AS
LIQUID WASTES WOULD. THE FACT THAT LIQUIDS CANNOT BE OBSERVED TO
MIGRATE FROM A SMALL SAMPLE AFTER A FEW MINUTES DOES NOT, OF COURSE,
ASSURE THAT THEY WILL NOT MIGRATE FROM A LARGER SAMPLE, OR AFTER A
LONGER PERIOD OF TIME, OR WHEN THE WASTE IS COMPRESSED BY WASTES PLACED
OVER IT. THIS TEST THUS REPRESENTS A ROUGH MINIMUM FOR THE CONTAINMENT
OF FREE LIQUIDS. THE AGENCY EXPECTS TO STUDY THE PROBLEM OF FREE
LIQUIDS FURTHER AND TO ATTEMPT TO DEVISE TESTS WHICH MORE ACCURATELY
REFLECT THE CONDITIONS OF WASTE WITHIN A LANDFILL. THE AGENCY
SPECIFICALLY SOLICITS FURTHER COMMENTS ON (1) DIFFICULTIES THAT MAY BE
EXPECTED IN APPLYING THE TEST, AND (2) SUGGESTIONS FOR OTHER TESTS OR
IMPROVEMENTS TO THIS TEST WHICH WILL BETTER TEST FOR THE PRESENCE OF
LIQUIDS WHICH CAN RELATIVELY EASILY MIGRATE FROM WASTES.
ALTERNATIVES TO DIRECT DISPOSAL OF LIQUID WASTES IN LANDFILLS INCLUDE
MIXING THE WASTES WITH AN ABSORBANT MATERIAL PRIOR TO LANDFILLING, AS
DESCRIBED PREVIOUSLY, CHEMICALLY FIXING OR SOLIDIFYING THE WASTES BEFORE
LANDFILLING, DEWATERING BEFORE LANDFILLING, TREATING THE WASTES TO
RENDER THEM NON-HAZARDOUS, WELL INJECTION, INCINERATION, RESOURCE
RECOVERY, AND STORAGE IN CONTAINERS, TANKS, AND SURFACE IMPOUNDMENTS.
THESE OPTIONS MAY BE IMPOSSIBLE FOR SOME WASTES. TAKEN SEPARATELY,
FACILTIY CAPACITIES FOR THESE OPTIONS MAY BE LIMITED IN THE REGION OF
WASTE GENERATION, OR MAY REQUIRE A LONG LEAD TIME TO DEVELOP;
NATIONALLY, NO SINGLE OPTION CAN HANDLE ALL THE HAZARDOUS LIQUID AND
SEMI-SOLID WASTES. TAKEN TOGETHER, HOWEVER, EPA BELIEVES THESE OPTIONS
CAN PROVIDE THE REQUIRED STORAGE, TREATMENT, AND DISPOSAL CAPACITY TO
OFFSET THE AMOUNTS OF LIQUID WASTES CURRENTLY DISPOSED OF BY PRACTICES
PROHIBITED BY THIS REGULATION. INDEED, THIS KIND OF PROHIBITION IS
ALREADY BEING IMPLEMENTED IN SOME STATES. AT LEAST 19 STATES ALREADY
PROHIBIT OR RESTRICT THE DISPOSAL OF BULK LIQUID WASTES IN LANDFILLS.
ALTHOUGH THESE PROVISIONS FOR BULK LIQUID WASTES WERE INCLUDED IN THE
PROPOSED GENERAL STANDARDS, THEY WERE NOT INCLUDED IN THE INTERIM STATUS
STANDARDS. THE AGENCY BELIEVES THAT WHILE TREATING LIQUID WASTES WILL
INCREASE OPERATING COSTS, IT WILL NOT ENTAIL GREAT CAPITAL EXPENDITURES
FOR EQUIPMENT OR FACILITIES. IN ADDITION, METHODS IMPLEMENTED DURING
THE INTERIM STATUS PERIOD TO COMPLY WITH THE REGULATION WILL NOT REQUIRE
CASE-BY-CASE DETERMINATIONS BY AGENCY OFFICIALS. HOWEVER, THE AGENCY
BELIEVES THAT GENERATORS, AND OWNERS AND OPERATORS OF FACILITIES MAY
NEED MORE THAN SIX MONTHS TO IDENTIFY AND DEVELOP ALTERNATIVES TO
LANDFILLING BULK LIQUID WASTES. THE AGENCY HAS, THEREFORE, DELAYED THE
DATE FOR COMPLIANCE WITH THIS REGULATION FOR 12 MONTHS PAST THE
EFFECTIVE DATE OF THE REGULATIONS.
WHILE THIS REGULATION HAS NOT CHANGED SUBSTANTIALLY FROM THE ONE
PROPOSED FOR THE GENERAL STANDARDS FOR LANDFILLS, IT IS BEING
PROMULGATED INTERIM FINAL PRIMARILY BECAUSE IT GENERATED SO MUCH COMMENT
BUT SO LITTLE DATA WHEN PROPOSED. SOME OF THE COMMENTS REQUESTED
CLARIFICATION OF THE TERMS "SEMI-SOLID," "NON-FLOWING," "SLUDGE," AND
"FREE LIQUIDS." THE AGENCY BELIEVES THAT ITS DEFINITION AND TEST FOR
FREE LIQUIDS ADEQUATELY RESPOND TO THESE COMMENTS.
OTHER COMMENTS FELL IN A SPECTRUM FORM CONTENTIONS THAT LIQUIDS
SHOULD BE BANNED FROM LANDFILLS TO CONTENTIONS THAT LIQUID IN LANDFILLS
SHOULD NOT BE RESTRICTED AT ALL. FEW OF THESE COMMENTS, HOWEVER,
PROVIDED ANY DATA OR MUCH ARGUMENT EXPLAINING WHY THEY ADOPTED A
PARTICULAR POSITION. THE AGENCY SOLICITS COMMENTS ON THE REGULATION AND
IS PARTICULARLY INTERESTED IN COMMENTS ON (1) WHAT DATA, IF ANY, IS
AVAILABLE TO SHOW THAT LANDFILLED LIQUIDS CAN CONFIDENTLY BE EXPECTED TO
BE ABSORBED AND IMMOBILIZED BY OTHER WASTE IN THE LANDFILL; (2) THE
NATURE AND EXTENT OF TREATMENT THAT COMMENTERS WOULD EXPECT TO CONDUCT
AT LANDFILLS IN COMPLIANCE WITH THE REGULATION; (3) ALTERNATIVES TO
LANDFILLING LIQUIDS AND WASTES CONTAINING FREE LIQUIDS THAT COMMENTERS
WOULD EXPECT TO PURSUE AS A RESULT OF THE REGULATION; AND (4) THE
NATURE OF THE ADDITIONAL HAZARDS, IF ANY, THAT COMMENTERS EXPECT TO BE
CREATED BY THIS REGULATION, AND HOW THEY MAY COMPARE TO THE GROUND WATER
POLLUTION HAZARDS THAT THE REGULATION ATTEMPTS TO ALLEVIATE.
11. CONTAINERIZED LIQUID WASTE. THE PROPOSED REGULATION REQUIRED
THAT EACH CONTAINER OF LIQUID HAZARDOUS WASTE BE SURROUNDED BY A
SUFFICIENT AMOUNT OF INERT SORBENT MATERIAL TO ABSORB ALL THE LIQUID
CONTENTS OF THE CONTAINER. SINCE CONTAINERS ARE KNOWN TO EVENTUALLY
DECAY IN A LANDFILL ENVIRONMENT, THIS REQUIREMENT WAS INTENDED TO
PREVENT MIGRATION OF LIQUID WASTE BY PROVIDING AN ABSORBENT MEDIUM.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 063 OF 106
COSTLE D M ADMINISTRATOR
EPA
113427
REGULATION
COMMENTERS EXPRESSED DIVERSE OPINIONS ON THE PROPOSED REGULATION,
RANGING FROM SUGGESTIONS THAT CONTAINERIZED LIQUID WASTES BE BANNED
TOTALLY, TO SUGGESTIONS THAT THEIR PLACEMENT IN LANDFILLS NOT BE
RESTRICTED AT ALL. ALTERNATIVES SCHEMES WERE SUGGESTED FOR PROVIDING
ABSORPTION CAPACITY WITHIN A LANDFILL, SUCH AS PLACING ABSORBENT
MATERIAL INSIDE A CONTAINER, OR SURROUNDING A GROUP OF CONTAINERS
(RATHER THAN SINGLE CONTAINERS) WITH ABSORBENT MATERIAL. THE
REQUIREMENT THAT THE ABSORBENT BE "INERT" WAS ALSO CHALLENGED.
BASED ON FURTHER AGENCY ANALYSIS, THE FINAL REGULATION GENERALLY
PROHIBITS DISPOSAL OF CONTAINERIZED LIQUID WASTES OR WASTES CONTAINING
FREE LIQUID IN LANDFILLS. DRUMS EVENTUALLY DEGRADE, ALLOWING LIQUIDS TO
ESCAPE. WHEN DRUMS COLLAPSE AND CREATE VOIDS, THEY CAN CAUSE SLUMPING
AND SUBSIDENCE OF THE COVER. THIS MAY INCREASE THE INFILTRATION OF
PRECIPITATION AND CAN ALSO RESULT IN THE ESCAPE OF WASTES THROUGH CRACKS
OR FISSURES IN THE FINAL COVER. FURTHERMORE, THERE IS NO ASSURANCE THAT
THE LIQUID WASTE WILL BE FULLY ABSORBED IN SURROUNDING MATERIAL. IT IS
DIFFICULT TO PREDICT THE ABSORBENT CAPACITY OF A MATERIAL BURIED IN A
LANDFILL. FOR EXAMPLE, THE ABSORBENT MATERIAL ITSELF MAY HAVE DECLAYED
BY THE TIME A DRUMMED LIQUID IS RELEASED OR MAY HAVE ALREADY BEEN
SATURATED WITH MOISTURE FROM ANOTHER SOURCE (SUCH AS INFILTRATION OR
MOISTURE FROM THE DECAY OF ORGANIC WASTES). LIQUID WASTES RELEASED FROM
A DRUM ALSO WILL MOST LIKELY FORM CHANNELS FROM THE POINT OF LEAKAGE
RATHER THAN BE EVENLY ABSORBED. IN ADDITION, IT IS IMPOSSIBLE TO
PREDICT WHEN DRUMS WILL FAIL IN A LANDFILL ENVIRONMENT. THIS IS A
PARTICULARLY CRITICAL UNCERTAINTY IN THAT FAILURE COULD OCCUR AFTER THE
POST-CLOSURE CARE PERIOD WHEN FACILITY MAINTENANCE AND GROUND-WATER
MONITORING ARE NO LONGER PERFORMED. CONVERSELY, IT WOULD BE IMPOSSIBLE
TO ESTABLISH A RATIONAL TERMINATION OF THE POST-CLOSURE CARE AND
FINANCIAL RESPONSIBILITY PERIOD IF THE STABILITY OF THE COVER AND LIQUID
WASTE RELEASE WERE SO UNCERTAIN. IN CONTRAST, IF DRUMMED LIQUIDS ARE
MIXED WITH ABSORBENT MATERIALS, AS BULK LIQUID WASTES MUST BE, A HISTORY
OF TROUBLE-FREE OPERATION AND POST-CLOSURE MONITORING IS A MUCH SURER
INDICATOR THAT THE LANDFILL WILL CONTINUE TO BE FREE FROM GROUND-WATER
CONTAMINATION AFTER POST-CLOSURE CARE AND MONITORING CEASE.
FOR THESE REASONS, EPA BELIEVES THAT A PROHIBITION ON PLACING
CONTAINERIZED LIQUID WASTE, OR WASTE CONTAINING FREE LIQUIDS IN
LANDFILLS WILL PROVIDE MORE EFFECTIVE CONTROL THAN THE PROPOSED
OPERATING RESTRICTIONS. AT LEAST 11 STATES ALREADY PROHIBIT OR RESTRICT
DISPOSAL OF CONTAINERIZED LIQUID WASTES AT LANDFILLS.
THE ALTERNATIVES TO LANDFILLING CONTAINERIZED LIQUID WASTES ARE
ESSENTIALLY THE SAME AS THOSE FOR BULK LIQUID WASTES, EXCEPT THAT
STORAGE OF THE CONTAINERS PROBABLY WILL BE SIMPLER THAN FINDING STORAGE
FOR BULK LIQUID WASTES. THUS, THE SAME REASONS EXIST FOR PROVIDING A 12
MONTH DELAY IN THE DATE FOR COMPLIANCE WITH THIS REGULATION.
THE AGENCY BELIEVES THAT SOME CONTAINERIZED LIQUID WASTES WILL BE
EMPTIED AND TREATED BEFORE BEING PLACED IN A LANDFILL. REMOVING LIQUID
WASTES FROM DRUMS MAY INCREASE THE LIKELIHOOD OF WASTE SPILLS AND WILL
MOST LIKELY RESULT IN INCREASED AIR EMISSIONS FROM VOLATILE WASTE.
ALTHOUGH THESE INTERIM STATUS REGULATIONS DO NOT CURRENTLY ADDRESS
VOLATILE WASTE, THE AGENCY EXPECTS TO DO SO IN THE PHASE II AND PHASE
III REGULATIONS AS INFORMATION BECOMES AVAILABLE, AND MAY AMEND THESE
INTERIM STATUS REGULATIONS WHERE APPROPRIATE. ADDITIONALLY, THE AGENCY
BELIEVES THAT UNTIL THE PROBLEM OF VOLATILE EMISSIONS CAN BE DEALT WITH
IN A MORE SATISFACTORY MANNER, VOLATILE HAZARDOUS WASTE SHOULD GENERALLY
NOT BE PLACED IN ANY DISPOSAL FACILITY. OPENING DRUMS CONTAINING LIQUID
HAZARDOUS WASTE, PARTICULARLY VOLATILE WASTE, REQUIRES SPECIAL SAFETY
PRECAUTIONS, SUCH AS VENTILATION OR USE OF RESPIRATORY EQUIPMENT.
HOWEVER, ADEQUATE HANDLING METHODS ARE CURRENTLY USED AT SOME FACILITIES
TO SAFELY DISPOSE OF BULK LIQUID WASTES, AND TO EMPTY CONTAINERS HOLDING
WASTE WITH FREE LIQUIDS. THESE METHODS CAN GENERALLY BE EMPLOYED AT
OTHER LANDFILLS AS WELL.
THE PROHIBITION ON LANDFILLING CONTAINERS (EMPTY OR FULL) APPLIES TO
55-GALLON DRUMS AND OTHER SIMILAR CONTAINERS, BUT DOES NOT APPLY TO
DEVICES WHICH FUNCTION AS A CONTAINER FOR HAZARDOUS WASTE DURING THEIR
USEFUL LIFE, SUCH AS BATTERIES OR CAPACITORS OR TO VERY SMALL CONTAINERS
SUCH AS AMPULES. THESE TYPES OF CONTAINERS ARE NOT LIKELY TO CONTRIBUTE
SUBSTANTIAL VOLUMES OF LIQUID TO MOST LANDFILLS, AND THE DIFFICULTY OF
OPENING AND EMPTYING THEM APPEARS TO OUTWEIGH THE SMALL BENEFIT GAINED.
SINCE THIS REGULATION HAS BEEN MODIFIED SUBSTANTIALLY FROM THE ONE
PROPOSED FOR INTERIM STATUS, IT IS BEING PROMULGATED INTERIM FINAL.
COMMENTS ARE SOLICITED ON THE REGULATION AND ESPECIALLY ON THE FOUR
POINTS LISTED PREVIOUSLY UNDER "BULK LIQUID WASTES."
12. EMPTY CONTAINERS. THE AGENCY ALSO IS CONCERNED THAT EMPTY
CONTAINERS BURIED IN A LANDFILL CAN COLLAPSE AND DISRUPT THE FINAL
COVER. THEREFORE, THE LANDFILLING OF EMPTY CONTAINERS IS ALSO
PROHIBITED. EACH EMPTY CONTAINER MUST BE CRUSHED FLAT, SHREDDED, OR IN
SOME OTHER MANNER REDUCED IN VOLUME, BEFORE BEING INCORPORATED INTO THE
LANDFILL. EPA ASSUMES THAT MOST EMPTY CONTAINERS WILL BE CRUSHED BY
LANDFILL EQUIPMENT PRIOR TO OR DURING DISPOSAL IN THE LANDFILL.
CURRENT PROCEDURES IN AT LEAST SIX STATES ALREADY CALL FOR EMPTY
DRUMS TO BE CRUSHED BEFORE DISPOSAL IN A LANDFILL.
SINCE THE PROPOSED REGULATIONS DID NOT CONTAIN A REQUIREMENT FOR THE
DISPOSAL OF EMPTY CONTAINERS, THE AGENCY IS PROMULGATING THIS REGULATION
INTERIM FINAL. THE AGENCY SOLICITS COMMENTS ON THIS REGULATION,
ESPECIALLY (1) ON THE NATURE AND EXTENT OF ACTIVITIES WHICH COMMENTERS
EXPECT TO CONDUCT IN COMPLIANCE WITH THE REGULATIONS, AND (2) HOW THESE
ACTIVITIES RELATE TO THE MANAGEMENT OF EMISSIONS DURING THE DISPOSAL OF
VOLATILE HAZARDOUS WASTE.
INCINERATION IS A RELATIVELY WELL-DEVELOPED AND WELL-UNDERSTOOD
TECHNOLOGY. PROPERLY EXECUTED, IT CAN ACCOMPLISH SAFE DESTRUCTION OF
PRIMARILY ORGANIC HAZARDOUS WASTE, PERMANENTLY REDUCING LARGE COLUMES OF
WASTE MATERIALS TO NON-TOXIC GASEOUS EMISSIONS AND SMALL AMOUNTS OF ASH
AND OTHER RESIDUES. INCINERATION CAN OFTEN PROVIDE AN OPTIMUM,
PERMANENT SOLUTION TO HAZARDOUS WASTE MANAGEMENT WITH MINIMAL LONG-TERM
ECOLOGICAL BURDEN.
THE PROPOSED SECTION 250.45-1 TECHNICAL PERFORMANCE AND DESIGN
REQUIREMENTS FOR INCINERATION CANNOT BE IMPLEMENTED DURING INTERIM
STATUS. THE TIME AND COSTS OF UPGRADING WITH THESE STANDARDS WOULD BE
CONSIDERABLE, AND THE DESIGNS WOULD REQUIRE EPA APPROVAL DURING THE
PERMITTING PROCESS. AS A RESULT, THE AGENCY HAS DEVELOPED A FEW GENERAL
OPERATION REQUIREMENTS FOR INCINERATION WHICH CAN BE IMPLEMENTED DURING
THE INTERIM STATUS PERIOD. THESE STANDARDS WILL IMPROVE OPERATING
PROCEDURES BY ELIMINATING SOME PRACTICES WHICH HAVE RESULTED IN PROBLEMS
IN THE PAST.
TECHNICAL CRITERIA FOR ISSUING PERMITS WILL BE PROMULGATED DURING
PHASE II OF THE RCRA REGULATORY PROGRAM. THESE WILL BE ACCOMPANIED BY A
DESIGN AND OPERATION GUIDANCE MANUAL WHICH WILL ASSIST PERMITTING
OFFICIALS AND THE REGULATED COMMUNITY IN EVALUATING THE ADEQUACY OF
SPECIFIC INCINERATORS. MOST OF THE SPECIFIC, QUANTITATIVE DESIGN,
OPERATION, AND PERFORMANCE REQUIREMENTS WILL BE ISSUED WHEN ADEQUATE
TECHNICAL SUPPORT FOR THESE STANDARDS CAN BE FIRMLY ESTABLISHED.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 064 OF 106
COSTLE D M ADMINISTRATOR
EPA
113428
REGULATION
THE PHASE I REGULATIONS APPLY TO INCINERATORS WHICH BURN HAZARDOUS
WASTE REGARDLESS OF THEIR SIZE, CAPACITY, PHYSICAL OR MECHANICAL TYPE,
OR GEOGRAPHICAL LOCATION. THE INCINERATION OF GASEOUS, LIQUID
SEMI-SOLID, AND SOLID HAZARDOUS WAWTE, AND BLENDS THEREOF, IS SUBJECE TO
THESE REGULATIONS. THE INCINERATION OF CUMBUSTIBLE WASTES OF VARYING
HEATING VALUES, AS WELL AS AQUEOUS AND OTHER WASTES WHICH MAY REQUIRE
CO-INCINERATION WITH AUXILIARY FUELS, IS ALSO SUBJECT TO THE SUBPART O
STANDARDS. BOILERS WHICH BURN WASTE PRIMARILY TO RECOVER ENERGY ARE NOT
NOW COVERED BY SUBTITLE C OF RCRA.
THESE STANDARDS WERE NOT PROPOSED TO BE EFFECTIVE DURING THE INTERIM
STATUS PERIOD. HOWEVER, AS COMMENTS SUGGESTED, THE AGENCY BELIEVES THAT
SEVERAL OF THE PROPOSED "GOOD OPERATING PRACTICE" REGULATIONS CAN
BENEFICIALLY BE INSTITUTED DURING INTERIM STATUS TO REDUCE HAZARDS
ASSOCIATED WITH POOR OPERATING PROCEDURES. THE INCINERATION STANDARDS
FOR THE INTERIM STATUS PERIOD ARE BEING PROMULGATED INTERIM FINAL, AND
THE AGENCY WILL ACCEPT COMMENTS ON THEM. TO SOME EXTENT, THESE
STANDARDS ARE DERIVED FROM PARTS OF THE PROPOSED REGULATIONS. AN
ANLAYSIS OF THE MAJOR COMMENTS RECEIVED ON THESE PARTS OF THE PROPOSED
SECTION 250.45-1 STANDARDS FOLLOWS.
SEVERAL COMMENTERS FELT THAT RCRA WAS NOT INTENDED TO REGULATE
INCINERATION, CONTENDING INSTEAD THAT THE CLEAN AIR ACT IS THE
APPROPRIATE VEHICLE FOR REGULATING INCINERATORS. TO SUPPORT THEIR
ARGUMENT, THESE COMMENTERS CLAIMED THAT SECTION 1004(3) OF RCRA (WHICH
DEFINES "DISPOSAL") SPOKE IN TERMS OF LAND DISPOSAL SITUATIONS INVOLVING
PRIMARILY WATER AND SOILS, AND WAS NOT RELEVANT TO INCINERATION.
THE AGENCY DISAGREES WITH THIS ARGUMENT. INCINERATION IS IN FACT A
TREATMENT PROCESS. IT MEETS THE DEFINITION OF "TREATMENT" IN SECTION
1004(34) OF RCRA:
. . . ANY METHOD, TECHNIQUE, OR PROCESS, INCLUDING NEUTRALIZATION
DESIGNED TO CHANGE THE PHYSICAL, CHEMICAL, OR BIOLOGICAL CHARACTER OR
COMPOSITION OF ANY HAZARDOUS WASTE SO AS TO NEUTRALIZE SUCH WASTE OR SO
AS TO RENDER SUCH WASTE NON-HAZARDOUS, SAFER FOR TRANSPORT, AMENABLE FOR
RECOVERY, AMENABLE FOR STORAGE, OR REDUCED IN VOLUME . . .
THE OBJECTIVE OF INCINERATING HAZARDOUS WASTE IS NORMALLY TO CHANGE
THE PHYSICAL FORM OR CHEMICAL COMPOSITION OF THE WASTE SO AS TO RENDER
IT LESS HAZARDOUS. INCINERATION MAY ALSO RENDER THE WASTE "SAFER FOR
TRANSPORT, AMENABLE FOR RECOVERY, AMENDABLE FOR STORAGE, OR REDUCED IN
VOLUME."
THEREFORE, INCINERATION IS A TREATMENT PROCESS WITHIN THE MEANING OF
RCRA, AND THE AGENCY HAS A MANDATE TO PRODUCE OPERATION, LOCATION,
DESIGN, AND CONSTRUCTION REGULATIONS FOR THE INCINERATION OF HAZARDOUS
WASTE ADEQUATE TO PROTECT HUMAN HEALTH AND THE ENVIRONMENT. THE
INTERACTION OF RCRA AND THE CLEAN AIR ACT IS DISCUSSED ABOVE.
1. GENERAL OPERATING REQUIREMENTS. SOME COMMENTERS REQUESTED THAT A
SPECIFIC PERIOD OF TIME DURING START-UP AND SHUTDOWN BE DESIGNATED,
DURING WHICH THE PROPOSED PERFORMANCE STANDARDS (FOR COMBUSTION AND
DESTRUCTION EFFICIENCY) WOULD NOT APPLY. THESE COMMENTERS CLAIMED THAT
DURING THESE PERIODS, TEMPERATURE AND OTHER COMBUSTION CONDITIONS ARE
SUBJECT TO WIDE FLUCTUATIONS, AND THUS, OBTAINING THE REQUIRED
DESTRUCTION EFFICIENCIES DURING THESE TIMES WOULD BE DIFFICULT. THE
AGENCY AGREES THAT THESE FLUCTUATIONS CAN OCCUR DURING START-UP PERIODS,
AND BELIEVES THAT THIS UNDOUBTEDLY RESULTS IN HAZARDOUS EMISSIONS. TO
COUNTER THIS PROBLEM, THE FINAL RULES REQUIRE THAT INCINERATORS ACHIEVE
NORMAL STEADY STATE COMBUSTION CONDITIONS, USING AUXILIARY FUEL, BEFORE
WASTES ARE INTRODUCED.
2. MONITORING AND INSPECTIONS. A NUMBER OF COMMENTS WERE RECEIVED
ON THE PROPOSED MONITORING AND FACILITY INSPECTION REQUIREMENTS.
COMMENTERS RAISED QUESTIONS ABOUT THE EXPENSE AND RELIABILITY OF THE
REQUIRED GASEOUS MONITORING EQUIPMENT, THE FREQUENCY OF INSPECTION, AND
THE SPECIFICATION OF MONITORING POINTS. DETAILED MONITORING
REQUIREMENTS AND THE COMMENTS ON THESE REQUIREMENTS WILL BE ADDRESSED IN
THE PHASE II AND PHASE III REGULATIONS. IN THESE PHASE I RULES, THE
AGENCY HAS SPECIFIED A MINIMUM SCHEDULE FOR MONITORING AND INSPECTING
THE OPERATION OF INCINERATORS. COMBUSTION AND EMISSION CONTROL
EQUIPMENT MUST BE MONITORED, AND OPERATING CORRECTIONS MADE WHEN
NECESSARY, AT LEAST EVERY 15 MINUTES, TO ENSURE THAT CRITICAL CONDITIONS
ARE NOT ALLOWED TO VARY IN AN UNCONTROLLED MANNER. IN ADDITION,
INSPECTION POINTS, SUCH AS VISIBLE STACK EMISSIONS AND CRITICAL PUMPS,
ARE ALSO REQUIRED TO BE INSPECTED IN ACCORDANCE WITH BOTH THE MINIMUM
FREQUENCIES SPECIFIED IN THE SUBPART O STANDARDS, AND IN THE FACILITY
INSPECTION SCHEDULE (SEE PREAMBLE DISCUSSION ON "INSPECTIONS").
3. WASTE ANALYSIS. THE REQUIREMENTS FOR WASTE ANALYSIS WERE
CONTAINED IN THE GENERAL FACILITY STANDARDS SECTION OF THE PROPOSED
REGULATIONS. AS EXPLAINED EARLIER IN THE PREAMBLE DISCUSSION ENTITLED
"WASTE ANALYSIS", EACH TECHNICAL SECTION OF THE FINAL RULES CONTAINS
WASTE ANALYSIS REQUIREMENTS SPECIFIC TO THE MANAGEMENT METHOD REGULATED
IN THAT SECTION. ACCORDINGLY, THE FINAL SUBPART O STANDARDS INCLUDE
WASTE ANALYSIS REQUIREMENTS WHICH SPECIFY THE PARAMETERS AND
CONSTITUENTS FOR WHICH EACH TYPE OF WASTE MUST BE ANALYZED. THIS
ANALYSIS WILL ENABLE THE OPERATOR TO DETERMINE THE TYPE OF POLLUTANTS
WHICH MIGHT BE EMITTED FROM THE INCINERATOR AND TO ESTIMATE THE
NECESSARY COMBUSTION CONDITIONS. IN ADDITION, THE FINAL GENERAL WASTE
ANALYSIS RULES REQUIRE THAT EACH SHIPMENT BE INSPECTED AND, IF
NECESSARY, ANALYZED TO VERIFY THAT THE WASTE ACTUALLY RECEIVED AT THE
FACILITY IS THE SAME AS THAT WHICH WAS EXPECTED. THE WASTE ANALYSIS
STANDARDS SPECIFIED IN SUBPART O ARE MINIMUM PROCEDURES NECESSARY TO
ADEQUATELY OPERATE AN INCINERATOR. MOST REPUTABLE HAZARDOUS WASTE
INCINERATION OPERATORS CURRENTLY OBTAIN CONSIDERABLY MORE DETAILED
INFORMATION ON A NEW WASTE BEFORE INCINERATING IT THAN THESE STANDARDS
REQUIRE. ALL TESTING REQUIRED IN SUBPART O IS TO BE INCLUDED IN THE
WASTE ANALYSIS PLAN DISCUSSED ABOVE.
4. ENERGY RECOVERY. SOME COMMENTERS CLAIMED THAT MANY WASTE OILS,
AND SOLVENTS ARE USABLE AS FUELS AND ARE HAZARDOUS ONLY BECAUSE OF THEIR
IGNITABILITY, AND THAT TOO GREAT AN ECONOMIC BURDEN WOULD RESULT FROM
SUBJECTING THESE RELATIVELY EASILY COMBUSTED MATERIALS TO THE DETAILED
COMBUSTION, MONITORING, AND OTHER REQUIREMENTS SPECIFIED IN THE PROPOSED
RULES. THE AGENCY HAS DECIDED THAT THE BURNING OF HAZARDOUS WASTE FOR
ENERGY RECOVERY WILL NOT NOW BE COVERED UNDER THE HAZARDOUS WASTE
PROVISIONS OF RCRA. (HOWEVER, STORAGE OR TRANSPORTATION OF LISTED
HAZARDOUS WASTE PRIOR TO ENERGY RECOVERY IS COVERED BY THESE
REGULATIONS.) ACCORDINGLY, IF WASTE OILS AND SOLVENTS ARE BURNED AS A
FUEL IN A BOILER PRIMARILY TO PRODUCE STEAM OR USABLE ENERGY, THIS
ACTION IS NOT NOW COVERED BY THESE REGULATIONS.
FACILITIES IN WHICH HAZARDOUS WASTES ARE BURNED, AND IN WHICH ENERGY
RECOVERY IS ONLY INCIDENTAL OR MINIMAL, ARE SUBJECT TO THE SUBPART O
INCINERATOR STANDARDS. EXAMPLES OF ACTIVITIES COVERED BY THESE
REGULATIONS INCLUDE (1) COINCINERATING WASTES WITH HIGH THERMAL VALUE TO
HELP OFFSET THE LACK OF THERMAL VALUE IN OTHER WASTE, AND (2) DESTROYING
WASTES IN AN INCINERATOR TO WHICH A WASTE HEAT RECOVERY BOILER HAS BEEN
ADDED. THE DECISION AS TO WHETHER A FACILITY IS SUBJECT TO THE SUBPART
O STANDARDS DEPENDS ON THE PRIMARY PURPOSE OF THE UNIT IN WHICH THE
WASTE IS DESTROYED. IF THE PRIMARY PURPOSE IS TO PROVIDE STEAM, SUCH AS
IN A POWER BOILER, THE OPERATION IS NOT COVERED. IF THE PRIMARY PURPOSE
IS TO TREAT WASTES, THEN THE UNIT IS SUBJECT TO THE SUBPART O STANDARDS.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 065 OF 106
COSTLE D M ADMINISTRATOR
EPA
113429
REGULATION
5. CLOSURE. AT CLOSURE, ALL HAZARDOUS WASTE AND HAZARDOUS WASTE
RESIDUES (INCLUDING ASH, SCRUBBER WATERS, AND SCRUBBER SLUDGES) MUST BE
REMOVED FROM THE INCINERATOR.
COMMENTERS NOTED THAT THE PROPOSED RULES DID NOT SPECIFICALLY ADDRESS
RESIDUES FROM INCINERATORS. PURSUANT TO SECTION 261.3(E), RESIDUES
REMOVED FROM HAZARDOUS WASTE INCINERATORS ARE CONSIDERED TO BE HAZARDOUS
WASTES, AND THEY MUST BE MANAGED AS HAZARDOUS WASTES IN ACCORDANCE WITH
ALL APPLICABLE REQUIREMENTS OF PARTS 262, 263, AND 265, UNLESS THE OWNER
OR OPERATOR CAN DEMONSTRATE THAT THE RESIDUE IS NOT A HAZARDOUS WASTE.
THE INCINERATOR OPERATOR IS A "GENERATOR" WITH REGARD TO SUCH WASTES,
UNLESS THEY ARE EXEMPTED. A COMMENT TO THIS EFFECT HAS BEEN ADDED TO
THE FINAL RULES.
BECAUSE INCINERATION IS THE MOST PREVALENT METHOD CURRENTLY USED TO
THERMALLY TREAT HAZARDOUS WASTE, BOTH THE PROPOSED AND FINAL RULES
CONTAIN A SEPARATE SECTION SPECIFIC TO THIS WASTE MANAGEMENT TECHNIQUE.
HOWEVER, INCINERATION IS ONLY ONE TYPE OF MANAGEMENT PROCESS THAT CAN BE
USED TO THERMALLY TREAT HAZARDOUS WASTE. THERE ARE SEVERAL LESS
CONVENTIONAL METHODS THAT ARE BEING DEVELOPED AS AN ALTERNATIVE TO
CLASSIC INCINERATION. FOR EXAMPLE, AN EPA RESEARCH AND DEVELOPMENT
PROGRAM IS EXPLORING THE PERFORMANCE CHARACTERISTICS OF A MICROWAVE
DISCHARGE SYSTEM FOR DESTRUCTION OF TOXIC COMPOUNDS IN GASEOUS, LIQUID,
AND SOLID FORMS. CURRENTLY, THE SYSTEM HAS BEEN FOUND SUCCESSFUL, WITH
SOME INHERENT LIMITATIONS, FOR TREATING CERTAIN TOXIC ORGANIC COMPOUNDS.
SEVERAL COMMENTERS WERE CONCERNED THAT, BECAUSE THE PROPOSED RULES
CONTAINED NO REQUIREMENTS APPLICABLE TO METHODS OTHER THAN INCINERATION
TO THERMALLY DEGRADE HAZARDOUS WASTE, THE PROPOSED RULES MIGHT
DISCOURAGE THE DEVELOPMENT AND UTILIZATION OF ALTERNATIVE THERMAL
TREATMENT PROCESSES.
THE AGENCY INTENDS TO ENCOURAGE THE DEVELOPMENT AND USE OF THESE
EMERGING TECHNOLOGIES. THEREFORE, THE FINAL RULES CONTAIN A SEPARATE
SUBPART SPECIFIC TO THERMAL TREATMENT PROCESSES OTHER THAN INCINERATION.
IN ADDITION, A DEFINITION OF "THERMAL TREATMENT" HAS BEEN ADDED TO THE
FINAL RULES TO MORE EXPLICITLY DEFINE THE RELATIONSHIP BETWEEN
INCINERATORS AND OTHER THERMAL TREATMENT DEVICES. THERMAL TREATMENT IS
DEFINED AS:
"THE TREATMENT OF HAZARDOUS WASTE IN A DEVICE WHICH USES ELEVATED
TEMPERATURES AS THE PRIMARY MEANS TO CHANGE THE CHEMICAL, PHYSICAL, OR
BIOLOGICAL CHARACTER OR COMPOSITION OF THE HAZARDOUS WASTE. EXAMPLES OF
THERMAL TREATMENT PROCESSES ARE INCINERATORS, MOLTEN SALT PYROLYSIS
CALCINATION, WET AIR OXIDATION, AND MICROWAVE DISCHARGE."
INCINERATORS ARE A SUBSET OF THE THERMAL TREATMENT CLASS; THUS, MOST
OF THE PHASE I SUBPART P STANDARDS FOR THERMAL TREATMENT FACILITIES ARE
SIMILAR TO THE PHASE I SUBPART O INCINERATOR STANDARDS. THIS SECTION OF
THE PREAMBLE ONLY DISCUSSES THOSE ASPECTS WHICH DIFFER.
THE INTERIM STATUS STANDARDS REQUIRE THAT THERMAL TREATMENT PROCESSES
ACHIEVE STEADY STATE (NORMAL) CONDITIONS OF OPERATION BEFORE INTRODUCING
HAZARDOUS WASTE. THE RATIONALE FOR THIS REQUIREMENT IS THE SAME AS FOR
INCINERATORS. THE STEADY STATE REQUIREMENT FOR THERMAL TREATMENT HAS
BEEN MODIFIED BECAUSE SOME ACCEPTABLE THERMAL TREATMENT PROCESSES MAY
NOT OPERATE IN A STEADY STATE MANNER (E.G., BATCH-WISE OR NON-CONTINUOUS
PROCESSES IN WHICH WASTE IS INTRODUCED TO THE TREATMENT CHAMBER PRIOR TO
THE APPLICATION OF HEAT).
ALTHOUGH NOT PROPOSED AS AN INTERIM STATUS STANDARD, A BAN ON OPEN
BURNING OF HAZARDOUS WASTES WAS CONTAINED IN THE GENERAL FACILITY
STANDARDS SECTION OF THE PROPOSED REGULATIONS. THIS REQUIREMENT HAS
BEEN INCORPORATED INTO THE INTERIM STATUS STANDARDS FOR THERMAL
TREATMENT BECAUSE THE POTENTIAL HUMAN HEALTH HAZARDS ASSOCIATED WITH THE
PRACTICE DICTATE THAT OPEN BURNING BE ENDED NOW. COMMENTS RECEIVED ON
THE PROPOSED STANDARD CENTERED AROUND THE MILITARY'S NEED TO DISPOSE OF
EXPLOSIVES IN THE OPEN. THE AGENCY AGREES THAT OPEN BURNING AND OPEN
DETONATION ARE CURRENTLY THE ONLY ALTERNATIVES FOR DISPOSAL OF MOST
MUNITIONS, AND THUS A MODIFIED AND MORE DETAILED VERSION OF THE PROPOSED
VARIANCE FOR WASTE EXPLOSIVES HAS BEEN RETAINED IN THE FINAL RULES.
WASTE EXPLOSIVES AND BULK PROPELLANTS ARE INHERENTLY DANGEROUS TO CUT
OR DISASSEMBLE TO MAKE THEM AMENABLE TO PRESENT THERMAL TREATMENT
TECHNOLOGIES. THIS HAZARD IS DEMONSTRATED BY THE NUMBER OF DAMAGE
INCIDENTS THAT HAVE OCCURRED DURING CUTTING AND HANDLING PROCESSES AT
EXPLOSIVES MANUFACTURING FACILITIES. OPEN BURNING AND OPEN DETONATION
OF KNOWN TYPES AND AMOUNTS OF BULK PROPELLANTS AND EXPLOSIVES CAN BE
CONDUCTED SAFELY WITHOUT HARM TO HUMAN HEALTH AND THE ENVIRONMENT.
THE AGENCY HAS DECIDED TO ALLOW OPEN BURNING AND OPEN DETONATION OF
WASTE EXPLOSIVES DURING THE INTERIM STATUS PERIOD, PROVIDED THAT IT IS
CONDUCTED AT MINIMUM DISTANCES FROM THE PROPERTY OF OTHERS. THESE
MINIMUM SEPARATION DISTANCES WERE DEVELOPED AND PUBLISHED BY THE
DEPARTMENT OF DEFENSE. THE INTERIM STATUS STANDARDS FOR OPEN BURNING
ALLOW SMALL AMOUNTS OF EXPLOSIVES (UP TO 100 POUNDS) TO BE OPEN BURNED
OR OPEN DETONATED AT A MINIMUM OF 204 METERS (670 FEET) FROM LOCATIONS
WHERE THERE MAY BE PERSONS IN THE OPEN (E.G., THE PROPERTY OF OTHERS),
AND SUCCEEDINGLY GREATER DISTANCES FOR GREATER AMOUNTS OF EXPLOSIVES.
THESE LIMITS WERE DEVELOPED BY DOD AS MINIMUM SAFE DISTANCES FOR THE
PROTECTION OF PERSONS IN THE OPEN FROM FRAGMENTATION, FLYING DEBRIS, OR
THE EFFECTS OF OVERPRESSURE. SINCE DOD DOES NOT PROVIDE SAFE DISTANCES
FOR PROTECTION FROM FRAGMENTATION FOR AMOUNTS OF EXPLOSIVE WASTE LARGER
THAN 30,000 POUNDS, THE AGENCY HAS LIMITED THE AMOUNT OF EXPLOSIVE WASTE
THAT CAN BE OPEN BURNED AT ANY ONE TIME TO 30,000 POUNDS.
TECHNICAL PERFORMANCE AND DESIGN REQUIREMENTS FOR THERMAL TREATMENT
PROCESSES ARE BEING DEVELOPED. THESE TECHNICAL CRITERIA WILL BE
ADDRESSED DURING PHASES II AND III OF THE RCRA REGULATORY PROGRAM.
THESE STANDARDS WILL BE ACCOMPANIED BY A DESIGN AND OPERATION GUIDANCE
MANUAL, WHICH WILL ASSIST PERMITTING OFFICIALS, THE REGULATED COMMUNITY,
AND THE PUBLIC IN EVALUATING THE ADEQUACY OF SPECIFIC TYPES OF THERMAL
TREATMENT PROCESSES.
BIOLOGICAL TREATMENT
THE PROPOSED REGULATIONS COVERED THE TREATMENT OF HAZARDOUS WASTE
PRIMARILY BY SETTING STANDARDS FOR TREATMENT IN BASINS (NOW TANKS),
SURFACE IMPOUNDMENTS, LAND TREATMENT FACILITIES, AND INCINERATORS.
WHILE THESE ARE THE PRIMARY KINDS OF EQUIPMENT OR FACILITIES USED TO
TREAT HAZARDOUS WASTE, CHEMICAL, PHYSICAL, AND BIOLOGICAL TREATMENT OF
HAZARDOUS WASTE CAN ALSO BE CONDUCTED IN OTHER TYPES OF EQUIPMENT BY
PROCESSES SUCH AS DISTILLATION, CENTRIFUGATION, REVERSE OSMOSIS, ION
EXCHANGE, AND FILTRATION. THE PROPOSED REGULATIONS CONTAINED A SECTION
DESIGNED TO REGULATE SUCH CHEMICAL, PHYSICAL, AND BIOLOGICAL TREATMENT.
BECAUSE THERE ARE MANY DIFFERENT TYPES OF POSSIBLE PROCESSES, AND
BECAUSE THE PROCESSES ARE FREQUENTLY WASTE-SPECIFIC, EPA HAS NOT
ATTEMPTED TO DEVELOP DETAILED REGULATIONS FOR ANY PARTICULAR TYPE OF
PROCESS OR EQUIPMENT.
THE AGENCY'S PRIMARY CONCERNS IN DEVELOPING THESE REGULATIONS HAS
BEEN, AS IT HAS BEEN FOR OTHER TYPES OF FACILITIES AND EQUIPMENT, THE
SAFE CONTAINMENT OF HAZARDOUS WASTE, HAZARDOUS WASTE CONSTITUENTS, AND
TREATMENT BYPRODUCTS THROUGH WASTE ANALYSIS, INSPECTIONS, S-ECIAL
ATTENTION TO THE HANDLING OF IGNITABLE, REACTIVE, OR INCOMPATIBLE
WASTES, AND PROPER CLOSURE. IN THESE RESPECTS, MOST CHEMICAL, PHYSICAL,
AND BIOLOGICAL TREATMENT OPERATIONS PRESENT ESSENTIALLY THE SAME
PROBLEMS AND REQUIRE ESSENTIALLY THE SAME SOLUTIONS AS THE TREATMENT OF
HAZARDOUS WASTES IN TANKS.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 066 OF 106
COSTLE D M ADMINISTRATOR
EPA
113430
REGULATION
THE EQUIPMENT IS TYPICALLY STATIONARY AND FAIRLY LARGE, AND THE
MATERIALS USED AND THE PROBLEMS ENCOUNTERED IN THAT PART OF THE
EQUIPMENT WHICH CONTAINS THE WASTE ARE NOT DISSIMILAR FROM THE MATERIALS
USED AND THE PROBLEMS ENCOUNTERED IN CONSTRUCTING TANKS.
IN ADDITION, AS DISCUSSED ABOVE IN SUBPART J, THE AGENCY HAS
REORIENTED ITS TANK REGULATIONS TO COVER TREATMENT IN TANKS AS WELL
AS STORAGE, AND MANY OF THE CURRENT TANK REGULATIONS HAVE BEEN
DRAWN FROM THE PROPOSED REGULATIONS FOR CHEMICAL, PHYSICAL, AND
BIOLOGICAL TREATMENT. FOR THESE REASONS, THE PRESENT REGULATIONS
FOR CHEMICAL, PHYSICAL, AND BIOLOGICAL TREATMENT AND FOR TANKS HAVE
BOTH BEEN DERIVED FROM A MERGING OF THE PROPOSED REGULATIONS FOR
THESE TYPES OF EQUIPMENT, FOR BASINS (WHICH ARE NOW TREATED AS
TANKS), AND FOR STORAGE AND TREATMENT GENERALLY. THE TANK
REGULATIONS AND THE CHEMICAL, PHYSICAL, AND BIOLOGICAL TREATMENT
REGULATIONS ARE NOW ESSENTIALLY IDENTICAL, AND THE RATIONALE FOR
FOR THE REGULATIONS ON CHEMICAL, PHYSICAL, AND BIOLOGICAL TREATMENT
IS THEREFORE PRESENTED ABOVE WITH THE RATIONALE FOR THE
REGULATIONS ON TANKS.
THE AGENCY EXPECTS TO DEVELOP SOMEWHAT MORE SPECIFIC STANDARDS FOR
CHEMICAL, PHYSICAL, AND BIOLOGICAL TREATMENT FACILITIES IN THE PHASE II
AND PHASE III REGULATIONS, AND FOR THIS REASON THESE REGULATIONS HAVE
BEEN INCORPORATED IN A SEPARATE SUBPART.
THE REGULATIONS FOR CHEMICAL, PHYSICAL, AND BIOLOGICAL TREATMENT
(SUBPART Q) DIFFER FROM THOSE FOR TANKS (IN SUBPART J) IN ONE RESPECT,
SUBPART Q CONTAINS NO REQUIREMENT FOR MAINTAINING A FREEBOARD OR
INSPECTING TO ENSURE THAT THE FREEBOARD IS MAINTAINED BECAUSE, TO THE
AGENCY'S KNOWLEDGE, THE TREATMENT PROCESSES REGULATED UNDER SUBPART Q
ARE CONDUCTED IN COVERED CONTAINMENT DEVICES, AND A FREEBOARD IS
UNNECESSARY.
EPA RECEIVED A NUMBER OF COMMENTS ON ITS PROPOSED SECTION 3004
REGULATIONS REQUESTING THE AGENCY TO CLARIFY WHETHER PIPES AND OTHER
TYPES OF TOTALLY ENCLOSED FACILITIES IN WHICH HAZARDOUS WASTE MAY BE
TREATED WOULD BE CONSIDERED HAZARDOUS WASTE TREATMENT FACILITIES AND
WOULD BE REQUIRED TO MEET SECTION 3004 STANDARDS AND OBTAIN A PERMIT.
COMMENTERS POINTED OUT THAT IN SOME PRODUCTION PROCESSES, WASTES
(PARTICULARLY ACID AND ALKALINE SOLUTIONS) ARE TREATED IN-PIPE, OFTEN
RESULTING IN A NON-HAZARDOUS DISCHARGE.
EPA AGREES THAT TO CLASSIFY "TOTALLY ENCLOSED TREATMENT SYSTEMS,"
SUCH AS PIPES, AS HAZARDOUS WASTE TREATMENT FACILITIES AND TO REQUIRE
THEM TO MEET SECTION 3004 STANDARDS AND OBTAIN A PERMIT WOULD NOT MAKE A
GREAT DEAL OF SENSE. THESE FACILITIES BY DEFINITION DO NOT RELEASE
WASTES OR WASTE CONSTITUENTS INTO THE ENVIRONMENT, AND THEREFORE
STRINGENT CONTROLS ARE NOT "NECESSARY TO PROTECT HUMAN HEALTH AND THE
ENVIRONMENT." SUCH CONTROLS MIGHT ALSO DISCOURAGE THE USE OF SUCH
FACILITIES, WHICH IN MANY WAYS REPRESENT THE OPTIMUM IN GOOD WASTE
MANAGEMENT PRACTICES. IT MAY ALSO BE VERY DIFFICULT AS A PRACTICAL
MATTER TO PERMIT OR OTHERWISE REGULATE THESE TYPES OF FACILITIES -- MANY
ARE INDOORS, ARE PART OF COMPLICATED PLUMBING SYSTEMS WHICH DO NOT FALL
WITHIN RCRA'S JURISDICTION, AND DO NOT HAVE CLEARLY DEFINED STARTING AND
END POINTS. ACCORDINGLY, EPA HAS EXCLUDED THESE FACILITIES FROM
REGULATION UNDER THIS PART.
PERSONS WHO HANDLE HAZARDOUS WASTE IN WHAT THEY BELIEVE TO BE A
"TOTALLY ENCLOSED TREATMENT FACILITY" SHOULD CAREFULLY READ THE
DEFINITION OF THAT TERM IN SECTION 260.10 OF THIS CHAPTER. THE KEY
CHARACTERISTIC OF SUCH A FACILITY IS THAT IT DOES NOT RELEASE ANY
HAZARDOUS WASTE OR CONSTITUENT OF HAZARDOUS WASTE INTO THE ENVIRONMENT
DURING TREATMENT. THUS, IF A FACILITY LEAKS, SPILLS, OR DISCHARGES
WASTE OR WASTE CONSTITUENTS, OR EMITS WASTES OR WASTE CONSTITUENTS INTO
THE AIR DURING TREATMENT, IT IS NOT A "TOTALLY ENCLOSED TREATMENT
FACILITY" WITHIN THE MEANING OF THESE REGULATIONS.
ANOTHER IMPORTANT CHARACTERISTIC OF A TOTALLY ENCLOSED TREATMENT
FACILITY IS THAT IT MUST BE DIRECTLY CONNECTED TO AN INDUSTRIAL
PRODUCTION PROCESS. THUS, SUCH A FACILITY LOCATED AT AN OFF-SITE
HAZARDOUS WASTE MANAGEMENT FACILITY DOES NOT QUALIFY FOR EXCLUSION FROM
THESE REGULATIONS.
AFTER TREATMENT IN A TOTALLY ENCLOSED TREATMENT FACILITY, THE
RESULTING DISCHARGE, TREATMENT RESIDUE, ETC., MAY BE A HAZARDOUS WASTE
AND SUBJECT TO REGULATION UNDER THIS PART. OWNERS AND OPERATORS OF SUCH
FACILITIES SHOULD CONSULT SECTION 261.3 OF THIS CHAPTER TO DETERMINE
WHETHER THAT IS THE CASE.
UNDER SECTION 250.40(E)(6) OF THE PROPOSED REGULATION, THE DISPOSAL
OF HAZARDOUS WASTES VIA UNDERGROUND INJECTION, PURSUANT TO THE SAFE
DRINKING WATER ACT (SDWA) REGULATIONS, WAS NOT SUBJECT TO REGULATION
UNDER THE RCRA SUBTITLE C PROGRAM. THAT EXCLUSION WAS BASED ON SECTION
1006 OF RCRA WHICH REQUIRES THE ADMINISTRATOR TO INTEGRATE RCRA
REGULATIONS WITH PROGRAMS UNDER THE AGENCY'S OTHER STATUTORY
AUTHORITIES, INCLUDING THE SAFE DRINKING WATER ACT. COMMENTERS WERE
GENERALLY SUPPORTIVE OF EPA'S EFFORTS TO COORDINATE ITS PROGRAMS, BUT
SOME EXPRESSED CONCERN THAT EXCLUSIVE RELIANCE ON THE UNDERGROUND
INJECTION CONTROL PROGRAM UNDER THE SDWA IN ADDRESSING THE ENVIRONMENTAL
PROBLEMS PRESENTED BY UNDERGROUND INJECTION OF HAZARDOUS WASTES WOULD
NOT FULLY SATISFY THE KEY HEALTH AND ENVIRONMENTAL CONCERNS EMBODIED IN
RCRA.
BASED ON A REVIEW OF THE COMMENTS AND FURTHER ANALYSIS OF THIS ISSUE,
EPA HAS CONCLUDED THAT UNDERGROUND INJECTION OF HAZARDOUS WASTES MUST BE
REGULATED UNDER RCRA DURING THE INTERIM STATUS PERIOD. THUS THE AGENCY
HAS DEVELOPED SUBPART R IN PART 265 WHICH SPECIFIES THE PARTICULAR
STANDARDS APPLICABLE TO DISPOSAL OF HAZARDOUS WASTE BY UNDERGROUND
INJECTION. IN ADDITION, OWNERS AND OPERATORS OF HAZARDOUS WASTE
INJECTION WELLS WILL BE SUBJECT TO THE GENERAL REQUIREMENTS (OTHER THAN
SUBPARTS G AND H) APPLICABLE TO ALL HAZARDOUS WASTE TREATMENT, STORAGE,
AND DISPOSAL FACILITIES. THE AGENCY RECOGNIZES THAT SOME OF THESE
GENERAL REQUIREMENTS MAY NOT APPLY DIRECTLY TO ALL UNDERGROUND INJECTION
OF HAZARDOUS WASTE, IN THE SAME SENSE THAT SOME MAY NOT APPLY DIRECTLY
TO ALL OTHER TYPES OF HAZARDOUS WASTE FACILITIES. THE REQUIREMENTS,
HOWEVER, ARE WRITTEN WITH SUFFICIENT FLEXIBILITY AND VARIANCES TO
ACCOMODATE THE DIFFERENCES AMONG FACILITIES, INCLUDING THE SOMEWHAT
DIFFERENT ASPECTS OF UNDERGROUND INJECTION.
UNDERGROUND INJECTION OF HAZARDOUS WASTE CONSTITUTES "DISPOSAL" AS
THAT TERM IS DEFINED IN SECTION 1004(3) OF RCRA. THE DEFINITION
SPECIFICALLY INCLUDES "INJECTION . . . OF ANY SOLID WASTE OR HAZARDOUS
WASTE INTO OR ON ANY LAND OR WATER." MOREOVER THERE IS NO SPECIFIC
LANGUAGE IN THE ACT INDICATING THAT INJECTION ACTIVITIES THAT MAY BE
SUBJECT TO THE SDWA ARE NECESSARILY BEYOND RCRA JURISDICTION. RCRA WAS
ENACTED AFTER THE SDWA. THE CONGRESS, THEREFORE, HAD AN OPPORTUNITY TO
IMPOSE ANY SPECIFIC LIMITS ON RCRA JURISDICTION THAT IT DEEMED
APPROPRIATE. IT IS SIGNIFICANT THAT THE CONGRESS DID PLACE LIMITS ON
RCRA JURISDICTION TO COORDINATE RCRA PROGRAMS WITH THE CLEAN WATER ACT.
FOR EXAMPLE, THE DEFINITION OF "SOLID WASTE" UNDER RCRA EXCLUDES "SOLID
OR DISSOLVED MATERIALS IN . . . INDUSTRIAL DISCHARGES WHICH ARE POINT
SOURCES SUBJECT TO PERMITS UNDER SECTION 402 OF THE FEDERAL WATER
POLLUTION CONTROL ACT".
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 067 OF 106
COSTLE D M ADMINISTRATOR
EPA
113431
REGULATION
NO SUCH STATUTORY EXCLUSION EXIST FOR UNDERGROUND INJECTION OF
HAZARDOUS WASTES.
SECTION 1006 DOES REQUIRE THE ADMINISTRATOR TO INTEGRATE THE
PROVISIONS OF RCRA WITH APPROPRIATE PROVISIONS OF VARIOUS STATUTES
(INCLUDING THE SDWA) WHICH EPA ADMINISTERS. SUCH INTEGRATION IS ONLY
REQUIRED, HOWEVER, "TO THE EXTENT THAT IT CAN BE DONE IN A MANNER
CONSISTENT WITH THE GOALS AND POLICIES EXPRESSED" IN RCRA AND THE OTHER
STATUTES.
WHEN EPA'S STATUTORY AUTHORITIES PROVIDE OVERLAPPING JURISDICTION
OVER CERTAIN ACTIVITIES IT IS WITHIN THE DISCRETION OF THE ADMINISTRATOR
TO DECIDE WHICH PROGRAM WILL BE USED TO REGULATE THE ACTIVITY. IN ORDER
TO IMPLEMENT THE GOALS AND POLICIES OF EACH LAW, THE ADMINISTRATOR WILL
INCORPORATE THE KEY ELEMENTS OF EACH STATUTE INTO ITS REGULATORY
PROGRAM. SECTION 1006 OF RCRA PROVIDES STATUTORY RECOGNITION THAT SUCH
COORDINATED REGULATORY PROGRAMS ARE APPROPRIATE.
IN EVALUATING THE PROPOSED REGULATION, EPA DECIDED THAT COMPLETE
RELIANCE ON THE UIC PROGRAM TO HANDLE UNDERGROUND INJECTION OF HAZARDOUS
WASTE DURING THE INTERIM STATUS PERIOD COULD NOT ADEQUATELY ADDRESS
THREE KEY RCRA CONCERNS. FIRST, RCRA IS AIMED AT PROTECTION OF A BROAD
RANGE OF ENVIRONMENTAL MEDIA, INCLUDING GROUNDWATER, SURFACE WATER, AIR,
AND LAND. THE UIC PROGRAM IS DIRECTED AT THE PROTECTION OF UNDERGROUND
SOURCES OF DRINKING WATER. SECOND, SECTION 3004 OF RCRA REQUIRES THE
ADMINISTRATOR TO ESTABLISH STANDARDS "TO PROTECT HUMAN HEALTH AND THE
ENVIRONMENT." THIS LANGUAGE INDICATES THAT RCRA REGULATIONS WERE TO
ADDRESS A BROADER RANGE OF ENVIRONMENTAL PROBLEMS THAN THE UIC PROGRAM.
THIRD, THE UIC PROGRAM DOES NOT HAVE THE EQUIVALENT OF AN INTERIM STATUS
PERIOD WHEN OWNERS OR OPERATORS WHO DISPOSE OF HAZARDOUS WASTE BY
UNDERGROUND INJECTION ARE SUBJECT TO FEDERALLY ENFORCEABLE STANDARDS.
ENFORCEMENT OF ENVIRONMENTAL CONTROLS UNDER THE UIC PROGRAM MUST AWAIT:
THE IDENTIFICATION OF STATES NEEDING A PROGRAM; THE DEVELOPMENT OF
STATE PROGRAMS FOR PRIMARY ENFORCEMENT RESPONSIBILITY; THE APPROVAL OR
DISAPPROVAL OF THOSE PROGRAMS BY EPA; AND THE DEVELOPMENT OF UIC
PROGRAMS FOR PRIMARY ENFORCEMENT RESPONSIBILITY. EPA DOES NOT BELIEVE
THAT UIC PRIMARY ENFORCEMENT PROGRAMS WILL BE IN PLACE IN ALL STATES ON
THE EFFECTIVE DATE OF THESE INTERIM STATUS REGULATIONS. THEREFORE, IN
ORDER TO PROVIDE CONTROL OVER UNDERGROUND INJECTION OF HAZARDOUS WASTE
DURING THE INTERIM STATUS PERIOD, AS CONTEMPLATED BY RCRA, IT IS
NECESSARY TO REGULATE UNDERGROUND INJECTION UNDER THESE REGULATIONS.
SECTION 1006 DIRECTS THE ADMINISTRATOR, IN THE COORDINATION OF EPA'S
OTHER STATUTES WITH RCRA, TO AVOID DUPLICATION AND TO STRUCTURE RCRA
REGULATIONS SO THAT THEY WILL NOT BE INCONSISTENT WITH THE REQUIREMENTS
OF OTHER STATUTES (SUCH AS THE SDWA). EPA IS MINDFUL OF THAT
REQUIREMENT AND INTENDS TO COORDINATE THE LATER STAGES OF THE RCRA AND
UIC PROGRAMS SO THAT THE KEY ELEMENTS OF THE STATUTORY SCHEME IN THE
SDWA WILL BE PRESERVED. EPA DOES NOT BELIEVE, HOWEVER, THAT THE
REGULATION OF UNDERGROUND INJECTION OF HAZARDOUS WASTES IN THESE INTERIM
STATUS REGULATIONS IS INCONSISTENT WITH THE SDWA. AS MENTIONED EARLIER
THE UIC PROGRAM DOES NOT HAVE THE EQUIVALENT OF AN INTERAM STATUS
PERIOD. THUS THERE CAN BE NO CONFLICT WITH SDWA PROVISIONS.
THE REGULATION OF UNDERGROUND INJECTION DURING INTERIM STATUS WAS NOT
A PART OF THE PROPOSED REGULATION, BUT THE DECISION TO DO SO WAS
PARTIALLY BASED ON FACTORS RAISED IN PUBLIC COMMENTS. MOREOVER, THE
AGENCY DOES NOT EXPECT THAT THE APPLICATION OF SOME OF THE GENERAL
REQUIREMENTS, OTHERWISE REQUIRED AT ALL FACILITIES, TO UNDERGROUND
INJECTION RAISES SUBSTANTIALLY DIFFERENT ISSUES THAN THOSE RAISED AND
ADDRESSED IN THE DEVELOPMENT OF THE INTERIM STATUS REGULATIONS.
THEREFORE, THE INCLUSION OF UNDERGROUND INJECTION IN THESE REGULATIONS
AND THE APPLICATION OF CERTAIN GENERAL REQUIREMENTS TO INJECTION WELLS
ARE BEING ISSUED AS "INTERIM FINAL." THIS APPROACH PROVIDES FOR PROMPT
IMPLEMENTATION OF REGULATIONS CONCERNING THESE PRACTICES, IN KEEPING
WITH RCRA GOALS AND POLICIES, WHILE ALLOWING AN OPPORTUNITY TO PUBLIC
COMMENT TO REVEAL ANY UNIQUE PROBLEMS THAT MAY ARISE IN APPLYING THE
GENERAL REQUIREMENTS OF THE INTERIM STATUS REGULATIONS TO UNDERGROUND
INJECTION.
UNDERGROUND INJECTION WILL NOT, HOWEVER, BE SUBJECT TO SUBPART G AND
H OF THE INTERIM STATUS REGULATIONS WHICH ADDRESS CLOSURE AND
POST-CLOSURE CARE AS WELL AS THE FINANCIAL REQUIREMENTS NECESSARY TO
ENSURE IMPLEMENTATION OF CLOSURE AND POST-CLOSURE CARE REQUIREMENTS.
REQUIREMENTS FOR CLOSURE AND POST-CLOSURE CARE NEED TO BE COORDINATED
WITH THE MORE SPECIFIC TECHNICAL REQUIREMENTS APPLICABLE TO UNDERGROUND
INJECTION. EPA HAS DECIDED, THEREFORE, TO ADDRESS CLOSURE AND
POST-CLOSURE AS PART OF THE PROPOSED REGULATION DESCRIBED BELOW.
SUBPART R OF THESE REGULATIONS INDICATES THOSE PARTS OF THE
REGULATION WHICH ARE NOT APPLICABLE TO UNDERGROUND INJECTION. IN
ADDITION IT SHOULD BE RECOGNIZED THAT THE GROUND-WATER MONITORING
REQUIREMENTS OF SUBPART F HAVE NOT BEEN APPLIED TO UNDERGROUND INJECTION
AT THIS TIME. SUBPART R ALSO INDICATES THAT IT APPLIES TO CLASS I AND
CLASS IV WELLS AS THOSE TERM ARE DEFINED UNDER SECTION 122.32 OF THE
CONSOLIDATED PERMITTING REGULATIONS.
THIS PROVISION IS DESIGNED TO SHOW THAT THESE REGULATIONS COVER, AT A
MINIMUM, THOSE UNDERGROUND INJECTION FACILITIES THAT WILL BE SUBJECT TO
CONTROL UNDER THE UIC PROGRAM.
THE AGENCY IS PROPOSING REGULATIONS THAT PROVIDE MORE SPECIFIC
REQUIREMENTS TO DEAL WITH THE PARTICULAR ENVIRONMENTAL PROBLEMS
PRESENTED BY UNDERGROUND INJECTION. THESE PROPOSED REGULATIONS WILL
AMEND SUBPART R AND WILL ADDRESS ISSUES RELATING TO DIRECT INJECTION OF
HAZARDOUS WASTE, GENERAL OPERATING REQUIREMENTS, WASTE ANALYSIS,
MONITORING, CLOSURE AND POST-CLOSURE CARE, RECORDKEEPING AND REPORTING,
AND SPECIAL REQUIREMENTS FOR IGNITABLE, REACTIVE OR INCOMPATIBLE WASTES.
THE SECTIONS OF THE REGULATIONS ISSUED UNDER SECTION 3004 OF RCRA
PERTAINING TO RECORDKEEPING AND REPORTING HAVE BEEN SUBMITTED TO THE
OFFICE OF MANAGEMENT AND BUDGET FOR REVIEW IN LIGHT OF THE REQUIREMENTS
OF THE FEDERAL REPORTS ACT, 44 U.S.C. 3501 ET SEQ. TIME HAS NOT
PERMITTED COMPLETION OF THIS REVIEW.
THE AGENCY HAS DEVELOPED OR WILL PREPARE TWO SETS OF DOCUMENTS IN
CONJUNCTION WITH THE SECTION 3004 RULES. THIS SECTION OF THE PREAMBLE
DESCRIBES THESE DOCUMENTS.
EIGHTEEN BACKGROUND DOCUMENTS HAVE BEEN DEVELOPED TO EXPLAIN AND
RESPOND TO COMMENTS ON THE PHASE I RULES. ADDITIONAL DOCUMENTS WILL
ACCOMPANY THE PHASE II AND PHASE III REGULATIONS AS THEY ARE PUBLISHED.
THESE BACKGROUND DOCUMENTS BASICALLY CORRESPOND TO EACH SECTION OR
SUBPART OF THE FINAL RULES. EACH CONTAINS AN EXPLANATION OF THE DATA
AND REASONING WHICH LED THE AGENCY TO PROPOSE EACH REGULATION, AN
IN-DEPTH REVIEW OF THE COMMENTS RECEIVED ON THE REGULATION, AN ANALYSIS
OF THE COMMENTS, AND THE AGENCY'S RATIONALE FOR ACCEPTING OR REJECTING
THESE COMMENTS.
COPIES OF THESE DOCUMENTS WILL BE AVAILABLE FOR REVIEW IN THE EPA
REGIONAL OFFICE LIBRARIES AND AT THE EPA HEADQUARTERS LIBRARY, ROOM
2404, WATERSIDE MALL, 401 M STREET, S.W., WASHINGTON, D.C., 20460. EPA
WILL PUBLISH A NOTICE IN THE FEDERAL REGISTER WHEN THESE DOCUMENTS HAVE
ALL BEEN REPORDUCED AND DISTRIBUTED TO THESE LIBRARIES.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 068 OF 106
COSTLE D M ADMINISTRATOR
EPA
113432
REGULATION
THEY WILL BE AVAILABLE FROM SOLID WASTE INFORMATION, U.S.
ENVIRONMENTAL PROTECTION AGENCY, 26 WEST ST. CLAIR STREET, CINCINNATI,
OHIO 45268, WITHIN SIX MONTHS AFTER THESE REGULATIONS ARE PROMULGATED.
A LIST OF THESE BACKGROUND DOCUMENTS IS AS FOLLOWS:
1. PURPOSE, SCOPE, AND APPLICABILITY (INCLUDING GENERAL ISSUES
CONCERNING INTERIM STATUS STANDARDS)
2. GENERAL WASTE ANALYSIS REQUIREMENTS
3. SECURITY
4. GENERAL INSPECTION REQUIREMENTS
5. PERSONNEL TRAINING
6. PREPAREDNESS AND PREVENTION, CONTINGENCY PLANS, AND EMERGENCY
PROCEDURES
7. MANIFEST SYSTEM, RECORDKEEPING, AND REPORTING
8. INTERIM STATUS STANDARDS FOR GROUND-WATER MONITORING
9. INTERIM STATUS STANDARDS FOR CLOSURE AND POST-CLOSURE CARE
10. INTERIM STATUS FINANCIAL REQUIREMENTS
11. INTERIM STATUS STANDARDS FOR CONTAINERS AND PILES
12. INTERIM STATUS STANDARDS FOR TANKS
13. INTERIM STATUS STANDARDS FOR SURFACE IMPOUNDMENTS
14. INTERIM STATUS STANDARDS FOR LAND TREATMENT
15. INTERIM STATUS STANDARDS FOR LANDFILLS
16. INTERIM STATUS STANDARDS FOR INCINERATORS
17. INTERIM STATUS STANDARDS FOR THERMAL TREATMENT
18. INTERIM STATUS STANDARDS FOR CHEMICAL, PHYSICAL, AND BIOLOGICAL
TREATMENT.
THESE REGULATIONS, AND THOSE YET TO BE PROMULGATED IN PHASES II AND
III, WILL CONSTITUTE THE FULL SET OF REQUIREMENTS FOR MANAGING HAZARDOUS
WASTE. HOWEVER, THEIR RELIANCE ON PERFORMANCE STANDARDS AND THE
INCORPORATION OF VARIANCE PROCEDURES PROVIDE CONSIDERABLE FLEXIBILITY TO
ACCOMMODATE NEW TECHNOLOGIES, SPECIAL NEEDS OF SPECIFIC LOCATIONS, AND
VARIATIONS IN WASTE CHARACTERISTICS.
TO ASSIST BOTH OWNERS AND OPERATORS OF FACILITIES AND REGULATORY
OFFICIALS, EPA WILL PREPARE A SERIES OF DESIGN AND OPERATION MANUALS.
THESE WILL NOT HAVE THE EFFECT OF REGULATIONS, BUT WILL PROVIDE GUIDANCE
ON HOW FACILITIES MAY BE DESIGNED AND OPERATED TO MEET THE STANDARDS.
THE MANUALS WILL ALSO PROVIDE GUIDANCE ON WHAT MODIFICATIONS AND
VARIATIONS ARE LIKELY TO BE EFFECTIVE UNDER THE VARIANCE PROCEDURES.
THEY WILL BE ORGANIZED TO CORRESPOND CLOSELY TO THE REGULATIONS AND WILL
BE BASED ON THE COLLECTIVE KNOWLEDGE OF THE AGENCY, THE LITERATURE, AND
EXPERTS THROUGHOUT THE WORLD. MANUALS WILL ALSO BE PREPARED FOR
TESTING, TRAINING, AND MONITORING.
EPA EXPECTS TO PREPARE THE FOLLOWING MANUALS:
1. TRAINING
2. GROUND-WATER MONITORING
3. AIR MONITORING
4. FINANCIAL RESPONSIBILITY
5. CONTAINERS
6. TANKS
7. SURFACE IMPOUNDMENTS
8. WASTE PILES
9. LAND TREATMENT
10. LANDFILLING
11. INCINERATION
12. THERMAL TREATMENT
13. CHEMICAL, PHYSICAL, AND BIOLOGICAL TREATMENT
THE AGENCY EXPECTS TO ISSUE THESE MANUALS BEFORE THE EFFECTIVE DATE
(I.E., SIX MONTHS AFTER PROMULGATION) OF THE PHASE II TECHNICAL
REGULATIONS. THEY WILL BE REVISED FROM TIME TO TIME AS MORE INFORMATION
BECOMES AVAILABLE, AND AS THE FINAL PHASE III REGULATIONS ARE DEVELOPED.
THE DOCUMENTS WILL BE AVAILABLE FOR REVIEW IN THE EPA REGIONAL OFFICE
LIBRARIES AND THE EPA HEADQUARTERS LIBRARY, ROOM 2404, WATERSIDE MALL,
401 M STREET, S.W., WASHINGTON, D.C. 20460. LATER THE AGENCY WILL
PUBLISH THE DOCUMENTS FOR DISTRIBUTION THROUGH SOLID WASTE INFORMATION,
U.S. ENVIRONMENTAL PROTECTION AGENCY, 26 WEST ST. CLAIR STREET,
CINCINNATI, OHIO 45268.
DATED: MAY 2, 1980.
DOUGLAS COSTLE, ADMINISTRATOR.
TITLE 40 IS AMENDED BY ADDING NEW PARTS 264 AND 265 AS SET FORTH
BELOW.
THE FOLLOWING SECTIONS ARE BEING PROMULGATED ON AN INTERIM FINAL
BASIS (SEE PREAMBLE SECTION IIB3 FOR DISCUSSION):
SEC.
264.12 REQUIRED NOTICES.
265.12 REQUIRED NOTICES.
265.17 GENERAL REQUIREMENTS FOR IGNITABLE, REACTIVE, OR INCOMPATIBLE
WASTES.
265.90 APPLICABILITY.
265.91 GROUND-WATER MONITORING SYSTEM.
265.92 SAMPLING AND ANALYSIS.
265.93 PREPARATION, EVALUATION AND RESPONSE.
265.94 RECORDKEEPING AND REPORTING.
SEC.
265.111 CLOSURE PERFORMANCE STANDARD.
265.112 CLOSURE PLAN; AMENDMENT OF PLAN.
265.113 TIME ALLOWED FOR CLOSURE.
265.117 POST-CLOSURE CARE AND USE OF PROPERTY; PERIOD OF CARE.
265.118 POST CLOSURE PLAN; AMENDMENT OF PLAN.
265.176 SPECIAL REQUIREMENTS FOR IGNITABLE OR REACTIVE WASTE.
265.198 SPECIAL REQUIREMENTS FOR IGNITABLE OR REACTIVE WASTE.
265.228 CLOSURE AND POST-CLOSURE.
265.251 PROTECTION FROM WIND.
265.252 WASTE ANALYSIS.
265.253 CONTAINMENT.
265.256 SPECIAL REQUIREMENTS FOR IGNITABLE OR REACTIVE WASTE.
265.257 SPECIAL REQUIREMENTS FOR INCOMPATIBLE WASTES.
265.310 CLOSURE AND POST-CLOSURE.
265.314 SPECIAL REQUIREMENTS FOR LIQUID WASTE.
265.315 SPECIAL REQUIREMENTS FOR CONTAINERS.
265.405 SPECIAL REQUIREMENTS FOR IGNITABLE OR REACTIVE WASTE.
265.430 APPLICABILITY.
EPA WILL ALSO ACCEPT COMMENTS ON THE PROPRIETY OF INCLUDING THE
FOLLOWING SECTIONS AS INTERIM STATUS STANDARDS (SEE PREAMBLE SECTION
IIB3 FOR DISCUSSION):
SEC.
265.13 GENERAL WASTE ANALYSIS.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 069 OF 106
COSTLE D M ADMINISTRATOR
EPA
113433
REGULATION
SEC.
265.192 GENERAL OPERATING REQUIREMENTS.
265.193 WASTE ANALYSIS AND TRIAL TESTS.
265.22 GENERAL OPERATING REQUIREMENTS.
265.223 CONTAINMENT SYSTEM.
265.225 WASTE ANALYSIS AND TRIAL TESTS.
265.229 SPECIAL REQUIREMENTS FOR IGNITABLE OR REACTIVE WASTE.
265.230 SPECIAL REQUIREMENTS FOR INCOMPATIBLE WASTES.
265.28 SPECIAL REQUIREMENTS FOR IGNITABLE OR REACTIVE WASTE.
265.282 SPECIAL REQUIREMENTS FOR INCOMPATIBLE WASTES.
265.302 GENERAL OPERATING REQUIREMENTS.
265.312 SPECIAL REQUIREMENTS FOR IGNITABLE OR REACTIVE WASTE.
265.401 GENERAL OPERATING REQUIREMENTS.
265.402 WASTE ANALYSIS AND TRIAL TESTS.
COMMENTS SHOULD BE FORWARDED TO: RCRA DOCKET CLERK, ROOM 2711
WATERSIDE MALL, 401 M STREET, S.W., WASHINGTON, D.C. 20460.
SEC.
264.1 PURPOSE, SCOPE AND APPLICABILITY.
264.2 (RESERVED)
264.3 RELATIONSHIP TO INTERIM STATUS STANDARDS.
264.4 IMMINENT HAZARD ACTION.
264.5-264.9 (RESERVED)
264.10 APPLICABILITY.
264.11 IDENTIFICATION NUMBER.
264.12 REQUIRED NOTICES.
264.13 GENERAL WASTE ANALYSIS.
264.14 SECURITY.
264.15 GENERAL INSPECTION REQUIREMENTS.
264.16 PERSONNEL TRAINING.
264.17-264.29 (RESERVED)
264.30 APPLICABILITY.
264.31 DESIGN AND OPERATION OF FACILITY.
264.32 REQUIRED EQUIPMENT.
264.33 TESTING AND MAINTENANCE OF EQUIPMENT.
264.34 ACCESS TO COMMUNICATIONS OR ALARM SYSTEM.
264.35 REQUIRED AISLE SPACE.
264.36 SPECIAL HANDLING FOR IGNITABLE OR REACTIVE WASTE.
264.37 ARRANGEMENT WITH LOCAL AUTHORITIES.
264.38-264.49 (RESERVED).
264.50 APPLICABILITY.
SEC.
264.51 PURPOSE AND IMPLEMENTATION OF CONTINGENCY PLAN.
264.52 CONTENT OF CONTINGENCY PLAN.
264.53 COPIES OF CONTINGENCY PLAN.
264.54 AMENDMENT OF CONTINGENCY PLANT.
264.55 EMERGENCY COORDINATOR.
264.56 EMERGENCY PROCEDURES.
264.57-264.69 (RESERVED)
264.70 APPLICABILITY.
264.71 USE OF MANIFEST SYSTEM.
264.72 MANIFEST DISCREPANCIES
264.73 OPERATING RECORD.
264.74 AVAILABILITY, RETENTION AND DISPOSITION OF RECORDS.
264.75 ANNUAL REPORT.
264.76 UNMANIFESTED WASTE REPORT.
264.77 ADDITIONAL REPORTS.
264.78-264.999 (RESERVED)
APPENDIX I-RECORDKEEPING INSTRUCTIONS.
APPENDIX II-EPA REPORT FORM AND INSTRUCTIONS.
AUTHORITY: SECS. 1006,2002(A), AND 3004 OF THE SOLID WASTE DISPOSAL
ACT, AS AMENDED BY THE RESOURCE CONSERVATION AND RECOVERY ACT OF 1976,
AS AMENDED (42 U.S.C. 6905,6912(A), AND 6924).
(A) THE PURPOSE OF THIS PART IS TO ESTABLISH MINIMUM NATIONAL
STANDARDS WHICH DEFINE THE ACCEPTABLE MANAGEMENT OF HAZARDOUS
WASTE.
(B) THE STANDARDS IN THIS PART APPY TO OWNERS AND OPERATORS OF ALL
FACILITIES WHICH TREAT, STORE, OR DISPOSE OF HAZARDOUS WASTE, EXCEPT AS
SPECIFICALLY PROVIDED OTHERWISE IN THIS PART OR PART 261 OF THIS
CHAPTER.
(C) THE REQUIREMENTS OF THIS PART APPLY TO A PERSON DISPOSING OF
HAZARDOUS WASTE BY MEANS OF OCEAN DISPOSAL SUBJECT TO A PERMIT ISSUED
UNDER THE MARINE PROTECTION, RESEARCH, AND SANCTUARIES ACT ONLY TO THE
EXTENT THEY ARE INCLUDED IN A RCRA PERMIT BY RULE GRANTED TO SUCH A
PERSON UNDERPART 122 OF THIS CHAPTER. (COMMENT: THESE PART 264
REGULATIONS DO APPLY TO THE TREATMENT OR STORAGE OF HAZARDOUS WASTE
BEFORE IT IS LOADED ONTO AN OCEAN VESSEL FOR INCINERATION OR DISPOSAL AT
SEA.)
(D) THE REQUIREMENTS OF THIS PART APPLY TO A PERSON DISPOSING OF
HAZARDOUS WASTE BY MEANS OF UNDERGROUND INJECTION SUBJECT TO A PERMIT
ISSUED UNDERAN UNDERGROUND INJECTION CONTROL (UIC), PROGRAM APPROVED OR
PROMULGATED UNDER THE SAFE DRINKING WATER ACT ONLY TO THE EXTENT THEY
ARE REQUIRED BY SECTION 122.45 OF THIS CHAPTER. (COMMENTS: THESE PART
264 REGULATIONS DO APPLY TO THE ABOVE-GROUND TREATMENT OR STORAGE OF
HAZARDOUS WASTE BEFORE IT IS INJECTED UNDERGROUND.)
(E) THE REQUIREMENTS OF THIS PART APPLY TO THE OWNER OR OPERATOR OF A
POTW WHICH TREATS, STORES, OR DISPOSED OF HAZARDOUS WASTE ONLY TO THE
EXTENT THEY ARE INCLUDED IN A RCRA PERMIT BY RULE GRANTED TO SUCH A
PERSON UNDER PART 122 OF THIS CHAPTER.
(F) THE REQUIREMENTS OF THIS PART DO NOT APPLY TO A PERSON WHO
TREATS, STORES, OR DISPOSED OF HAZARDOUS WASTE IN A STATE WITH A RCRA
HAZARDOUS WASTE PROGRAM AUTHORIZED UNDER SUBPARTS 1 AND B OF PART 123 OF
THIS CHAPTER OR WITH A RCRA PHAS II HAZARDOUS WASTE PROGRAM AUTHORIZED
UNDER SUBPART FO OF PART 123 OF THIS CHAPTER, EXCEPT THAT THE
REQUIREMENTS OF THIS PART WILL CONTINUE TO APPLY AS STATED IN PARAGRAPH
(D) OF THIS SECTION, IF THE AUTHORIZED STATE RCRA PROGRAM DOES NOT COVER
DISPOSAL OF HAZARDOUS WASTE BY MEANS OF UNDERGROUND INJECTION.
(G) THE REQUIREMENTS OF THIS PART DO NOT APPLY TO:
(1) THE OWNER OR OPERATOR OF A FACILITY PERMITTED, LICENSED, OR
REGISTERED BY A STATE TO MANAGE MUNICIPAL OR INDUSTRIAL SOLID WASTE, IF
THE ONLY HAZARDOUS WASTE THE FACILITY TREATES, STORES, OR DISPOSED OF IS
EXECUDED FOR REGULATION UNDER THIS PART BY SECTION 261.5 OF THIS
CHAPTER;
(2) THE OWNER OR OPERATOR OF A FACILITY WHICH TREATS OR STORES
HAZARDOUS WASTE, WHICH TREATMENT OR STORAGE MEETS THE CRITERIA IN
SECTION 261.6(A) OF THIS CHAPTER, EXCEPT TO THE EXTENT THAT SECTION
261.6(B) OF THIS CHAPTER PROVIDES OTHERWISE;
(3) A GENERATOR ACCUMULATING WASTE ON-SITE IN COMPLIANCE WITH SECTION
262.34 OF THIS CHAPTER,
(4) A FARMER DISPOSING OF WASTE PESTICIDES FROM HIS OWN USE IN
COMPLIANCE WITH SECTION 262.51 OF THIS CHAPTER; OR
(5) THE OWNER OR OPERATOR OF A TOTALLY ENCLOSED TREATMENT FACILITY,
AS DEFINED IN SECTION 260.10.
A FACILITY OWNER OR OPERATOR WHO HAS FULLY COMPLIED WITH THE
REQUIREMENTS FOR INTERIM STATUS-AS DEFINED IN SECTION 3005(E) OF RCRA
AND REGULATIONS UNDER SECTION 122.23 OF THIS CHAPTER MUST COMPLY WITH
THE REGULATIONS SPECIFIED IN PART 265 OF THIS CHAPTER IN LIEU OF THE
REGULATIONS IN THIS PART, UNTIL FINAL ADMINISTRATIVE DISPOSITION OF HIS
PERMIT APPLICATION IS MDE. (COMMENT: AS STATED IN SECTION 300T(A) OF
RCRA, AFTER THE EFFECTIVE DATE OF REGULATIONS UNDER THE SECTION, I.E.,
PARTS 122 AND 124 OF THIS CHAPTER, THE TREATMENT, STORAGE, OR DISPOSAL
OF HAZARDOUS WASTE IS PROHIBITED EXCEPT IN ACCORDANCE WITH A PERMIT.
SECTION 3005(E) OF RCRA PROVIDES FOR THE CONTINUED OPERATION OF AN
EXISTING FACILITY WHICH MEETS CERTAIN CONDITIONS UNTIL FINAL
ADMINISTRATIVE DISPOSITION OF THE OWNER'S OR OPERATOR'S PERMIT
APPLICATION IS MADE.)
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 070 OF 106
COSTLE D M ADMINISTRATOR
EPA
113434
REGULATION
NOTWITHSTANDING ANY OTHER PROVISIONS OF THESE REGULATIONS,
ENFORCEMENT ACTIONS MAY BE BROUGHT PURSUANT TO SECTION 7003 OF RCRA.
THE REGULATIONS IN THIS SUBPART APPLY TO OWNERS AND OPERATORS OF ALL
HAZARDOUS WASTE FACILITIES, EXCEPT AS SECTION 264.1 PROVIDES OTHERWISE.
EVERY FACILITY OWNER OR OPERATOR MUST APPLY TO EPA FOR AN EPA
IDENTIFICATION NUMBER IN ACCORDANCE WITH THE EPA NOTIFICATION PROCEDURES
(45FR12746).
(A) THE OWNER OR OPERATOR OF A FACILITY THAT HAS ARRANGED TO RECEIVE
HAZARDOUS WASTE FROM A FOREIGN SOURCE MUST NOTIFY THE REGIONAL
ADMINSTRATOR IN WRITING AT LEAST FOUR WEEKS IN ADVANCE OF THE DATE THE
WASTE IS EXPECTED TO ARRIVE AT THE FACILITY. NOTICE OF SUBSEQUENT
SHIPMENTS OF THE SAME WASTE FROM THE SAME FOREIGN SOURCE IS NOT
REQUIRED.
(B) THE OWNER OR OPERATOR OF A FACILITY THAT RECEIVES HAZARDOUS WASTE
FROM AN OFF-SITE SOURCE (EXCEPT WHERE THE OWNER OR OPERATOR IS ALSO THE
GENERATOR) MUST INFORM THE GENERATOR IN WRITING THAT HE HAS THE
APPROPRIATE PERMIT(S) FOR, AND WILL ACCEPT, THE WASTE THE GENERATOR IS
SHIPPING. THE OWNER OR OPERATOR MUST KEEP A COPY OF THIS WRITTEN NOTICE
AS PARTOF THE OPERATING RECORD.
(C) BEFORE TRANSFERRING OWNERSHIP OR OPERATION OF A FACILITY DURING
ITS OPERATING LIFE, OR OF A DISPOSAL FACILITY DURING THE POST-CLOSURE
CARE PERIOD, THE OWNER OR OPERATOR MUST NOTIFY THE NEW OWNER OR OPERATOR
IN WRITING OF THE REQUIREMENTSOF THIS PART AND PART 122 OF THIS CHAPTER.
(COMMENT: AN OWNER'S OR OPERATOR'S FAILURE TO NOTIFY THE NEW OWNER OR
OPERATOR OF THE REQUIREMENTSOF THIS PART IN NO WAY RELIEVES THE NEW
OWNER OR OPERATOR OF HIS OBLIGATION TO COMPLY WITH ALL APPLICABABLE
REQUIREMENTS.)
(A) (1) BEFORE AN OWNER OR OPERATOR TREATS, STORES, OR DISPOSES OF
ANY HAZARDOUS WASTE, HE MUST OBTAIN A DETAILED CHEMICAL AND PHYSICAL
ANALYSIS OF A REPRESENTATIVE SAMPOLE OF THE WASTE. AT MINIMUM, THIS
ANALYSIS MUST CONTAIN ALL THE INFORMATION WHICH MUST BE KNOWN TO TREAT,
STORE, OR DISPOSE OF THE WASTE IN ACCORDANCE WITH THE REQUIREMENTS OF
THIS PART OR WITH THE CONDITIONS OF A PERMIT ISSUED UNDER PART 122,
SUBPARTS A AND B, AND PART 124 OF THIS CHAPTER.
(2) THE NALAYSIS MAY INCLUDE DATA DEVELOPED UNDER PART 261 OF THIS
CHAPTER, AND EXISTING PUBLISHED OR DOCUMENTED DATA ON THE HAZARDOUS
WASTE OR ON HAZARDOUS WASTE GENERATED FROM SIMILAR PROCESSES.
(COMMENT: FOR EXAMPLE, THE FACILITY'S RECORDS OF ANALYSES PERFORMED
ON THE WASTE BEFORE THE EFFECTIVE DATE OF THESE REGULATIONS, OR STUDIES
CONDUCTED ON HAZARDOUS WASTE GENERATED FROM PROCESSES SIMILAR TO THAT
WHICH GENERATED THE WASTE TO BE MANAGED AT THE FACILITY, MAY BE INCLUDED
IN THE DATA BASE REQUIRED TO COMPLY WITH PARAGRAPH (A)(1) OF THIS
SECTION. THE OWNER OR OPERATOR OF AN OFF-SITE FACILITY MAY ARRANGE FOR
THE GENERATOR OF THE HAZARDOUS WASTE TO SUPPLY PART OF ALL OF THE
INFORMATION REQUIRED BY PARAGRAPH (A)(1) OF THIS SECTION. IF THE
GENERATOR DOES NOT SUPPLY THE INFORMATION, AND THE OWNER OR OPERATOR
CHOOSES TO ACCEPT A HAZARDOUS WASTE, THE OWNER OR OPERATOR IS RESPONSIBL
FOR OBTAINING THE INFORMATION REQUIRED TO COMPLY WITH THIS SECTION.)
(3) THE ANALYSIS MUST BE REPEATED AS NECESSARY TO ENSURE THAT IT IS
ACCURATE AND UP TO DATE. AT A MINIMUM, THE ANALYSIS MUST BE REPEATED:
(I) WHEN THE OWNER OR OPERATOR IS NOTIFIED, OR HAS REASON TO BELIEVE,
THAT THEPROCESS OR OPERATION GENERATING THE HAZARDOUS WASTE HAS CHANGED;
AND
(II) FOR OFF-SITE FACILITIES, WHEN THE RESULTS OF THE INSPECTION
REQUIRED IN PARAGRAPH (A)(4) OF THIS SECTION INDICATE THAT THE HAZARDOUS
WASTE RECEIVED AT THE FACILITY DOES NOT MATCH THE WASTE DESIGNATED ON
THE ACCOMPANYING MANIFEST OR SHIPPING PAPER.
(4) THE OWNER OR OPERATOR OF AN OFFSITE FACILITY MUST INSPECT NAD, IF
NECESSARY, ANALYZE EACH HAZARDOUS WASTE MOVEMENT RECEIVED AT THE
FACILITY TO DETERMINE WHETHER IT MATCHES THE IDENTIFY OF THE WASTE
SPECIFIED ON THE ACCOMPANYING MANIFEST OR SHIPPING PAPER.
(B) THE OWNER OR OPERATOR MUST DEVELOP AND FOLLOW A WRITTEN WASTE
ANALYSIS PLANT WHICH DESCRIBES THE PROCEDURES WHICH HE WILL CARRY OUT TO
COMPLY WITH PARAGRAPH (A) OF THIS SECTION. HE MUST KEEP THIS PLANT AT
THE FACILITY. AT A MINIMUM, THE PLAN MUST SPECIFIY:
(1) THE PARAMETERS FOR WHICH EACH HAZARDOUS WASTE WILL BE ANALYZED
AND THE RATIONALE FOR THE SELECTION OF THESE PARAMETERS (I.E., HOW
ANALYSIS FOR THESE PARAMETERS WILL PRIVDE SUFFICIENT INFORMATION ON THE
WAST'S PROPERTIES TO COMPLY WITH PARAGRAPH (A) OF THIS SECTION);
(2) THE TEST METHODS WHICH WILL BE USED TO TEST FOR THESE PARAMETERS;
(3) THE SAMPLING METHODS WHICH WILL BE USED TO OBTAIN A
REPRESENTATIVE SAMPLE OF THE WASTE TO BE ANALYZED. A REPRESENTATIVE
SAMPLE MAY BE OBTAINED USING EITHER:
(I) ONE OF THE SAMPLING METHODS DESCRIBED IN APPENDIX I OF PART 261
OF THIS CHAPTER; OR
(II) AN EQUIVALENT SAMPLING METHODS.
(COMMENT; SEE SECTION 261.20(C) OF THIS CHAPTER FOR RELATED
DESCUSSION.)
(4) THE FREQUENCY WITH WHICH THE INITIAL ANALYSIS OF THE WASTE WILL
BE REVIEWED OR REPEATED TO ENSURE THAT THE ANALYSIS IS ACCURATE AND UP
TO DATE; AND ANALYSIS FOR ACCURATE AND UP TO DATE AND
(5) FOR OFF-SITE FACILITIES, THE WASTE ANALYSES THAT HAZARDOUS WASTE
GENERATORS HAVE AGREED TO SUPPLY.
(C) FOR OFF-SITE FACILITIES, THE WASTE ANALYSIS PLANT REQUIRED IN
PARAGRAPH (B) OF THIS SECTION MUST ALSO SPECIFY THE PROCEDURES WHICH
WILL BE USED TO INSPECT AND, IF NECESSARY, ANALYZE EACH MOVEMENT OF
HAZARDOUS WASTE RECEIVED AT THTE FACILITY TO ENSURE THAT IT MATCHES THE
IDENTITY OF THE WASTE DESIGNEATED ON THE ACCOMPANYING MANIFEST OR
SHIPPING PAPER. AT A MINIMUM, THE PLAN MUST DESCRIBE:
(1) THE PROCEDURES WHICH WILL BE USED TO DETERMINE THE IDENTITY OF
EACH MOVEMENT OF WASTE MANAGED AT THE FACILITY; AND
(2) THE SAMPLING METHODS WHICH WILL BE USED TO OBTAIN A
REPRESENTATIVE SAMPLE OF THE WASTE TO BE IDENTIFIED, IF THE
IDENTIFICATION METHOD INCLUDES SAMPLING.
(COMMENT: PART 122, SUBPART B, OF THIS CHAPTER REQUIRES THAT THE
WASTE ANALYSIS PLAN BE SUBMITTED WITH PART B OF THE PERMIT APPLICATION.)
(A) THE OWNER OR OPERATOR MUST PREVENT THE UNKNOWNING ENTRY, AND
MINIMIZE THE POSSIBILITY FOR THE UNAUTHORIZED ENTRY, OF PERSONS OR
LIVESTOCK ONTO THE ACTIVE PORTION OF HIS FACILITY, UNLESS HE CAN
DEMONSTRATE TO THE REGIONAL ADMINISTRATOR THAT:
(1) PHYSICAL CONTACT WITH THE WASTE, STRUCTURES, OR EQUIPMENT WITHIN
THE ACTIVE PORTION OF THE FACILITY WILLNT INJURE UNKNOWING OR
UNAUTHORIZED PERSONS OR LIVESTOCK WHICH MAY ENTER THE ACTIVE PORTION OF
A FACILITY; AND
(2) DISTRUBANCE OF THE WASTE OR EQUIPMENT, BY THE UNKNOWING OR
UNAUTHORIZED ENTRY OF PERSONS OR LIVESTOCK ONTO THE ACTIVE PORTION OF A
FACILITY, WILL NOT CAUSE A VIOLATION OF THE REQUIREMENTS OF THIS PART.
(COMMENT: PART 122, SUBPART B, OF THIS CHAPTER REQUIRES THAT AN
OWNER OR OPERATOR WHO WISHES TO MAKE THE DEMONSTRATION REFERRED TO ABOVE
MUST DO SO WITH PART OF THE PERMIT APPLICATION.)
(1) A 24-HOUR SURVEILLANCE SYSTEM (E.G., TELEVISION MONITORING OR
SURVEILLANCE BY GUARD OR FACILITY PERSONNEL) WHICH CONTINUOUSLY MONITORS
AND CONTROLS ENTRY ONTO THE ACTIVE PROTION OF THE FACILITY; OR
(2) (I) AN ARTIFICAIAL OR NATURAL BARRIER (E.G., A FENCE IN GOOD
REPAIR OR A FENCE COMBINED WITH A CLIFF), WHICH COMPLETELY SURROUNDS THE
ACTIVE PORTION OF THE FACILITY; AND
(II) A MENS TO CONTAROL ENTRY, AT ALL TIME, THROUGH THE GATES OR
OTHERENTRANCES TP THE ACTIVE PORTION OF THE FACILITY (E.G., AN
ATTENDANT, TELEVISION MONITORS, LOCKED ENTRACE, OR CONTROLLED ROADWAY
ACCESS TO THE FACILITY). (COMMENT: THE REQUIREMENTSOF PARAGRAPH (B) OF
THIS SECTION ARE SATISFIED IN THE FACILITY OR PLANT WITHIN WHICH THE
ACTIVE PORTION IS LOCATED ITSELF HAS A SURVEILLANCE SYSTEM, OR A BARRIER
AND A MEANS TO CONTROL ENTRY, WHICH COMPLIES WITH THE REQUIREMENTS OF
PARAGRAPH (B)(1) OR (B)(2) OF THIS SECTION.)
(C) UNLESS THE OWNER OR OPERATOR HAS MADE A SUCCESSFUL DEMONSTRATION
UNDER PARAGRAPHS (A)(1) AND (A)(2) OF THIS SECTION, A SIGN WITH THE
LEGEND, "DANGER-UNAUTHORIZED PERSONNEL KEEP OUT", MUST BE POSTED AT EACH
ENTRACE TO THE ACTIVE PORTION OF A FACILITY, AND AT OTHER LOCATIONS, IN
SUFFICIENT NUMBERS TO BE SEEN FROM ANY APPROACH TO THIS ACTIVE PORTION,
THE LEGEND MUST BE WRITTEN IN ENGLISH AND IN ANY OTHERLANGUAGE
PREDOMINAT IN THE AREA SURROUNDING THE FACILITY (E.G., FACILITIES IN
COUNTIES BORDERING THE CANADIAN PROVIDENCE OF QUEBEC MUST POST SIGNS IN
FRENCH; FACILITIES IN COUNTIES BORDERING MEXICO MUST POST SIGNS IN
SPANISH), AND MUST BE LEGIBLE FROM A DISTANCE OF AT LEAST 25 FEET.
ESISTING SIGNS WITH A LEGEND OTHER THAN "DANGER-UNAUTHORIZED PERSONNEL
KEEP OUT" MAY BE USED IF THE LEGEND ON THE SIGN INDICATES THAT ONLY
AUTHORIZED PERSONNEL ARE ALLOWED TO ENTER THE ACTIVE PORTION, AND THAT
ENTRY ONTO THE ACTIVE PORTION CAN BE DANGEROUS.
(A) THE OWNER OR OPERATOR MUST INSPECT HIS FACILITY FOR MALFUNCTIONS
AND DETERIORATION, OPERATOR ERROS, AND DISCHARGES WHICH MAY BE
CAUSING-OR MAY LEAD TO-(1) RELEASE OF HAZARDOUS WASTE CONSTITUENTS TO
THE ENVIRONMENT OR (2) A THREAT TO HUMAN HEALTH. THE OWNER OR OPERATOR
MUST DEVELOP AND FOLLOW A WRITTEN SCHEDULE FOR INSPECTING MONITORING
EQUIPMENT, SAFETY AND EMERGENCY EQUIPMENT, SECURITY DEVICES, AND
OPERATING AND STRUCTURAL EQUIPMENT (SUCH AS DIKES AND SUMP PUMPS) THAT
ARE MIPORTANT TO PREVENTING, DETECTING, OR RESPONDING TO ENVIRONMENTAL
OR HUMAN HEALTH HAZARDS.
(2) HE MUST KEEP THIS SCHEDULE AT THE FACILITY.
(3) THE SCHEDULE MUST IDENTIFY THE TYPES OF PROBLEMS (E.G.,
MALFUNCTIONS OR DETERIORATION) WHICH ARE TO BE LOOKED FOR DURING THE
INSPECTION (E.G., INOPERATIVE SUMP PUMP, LEAKING FITTING, ERODING DIKE,
ETC.).
(4) THE FREQUENCY OF INSPECTION MAY VARY FOR THE ITEMS ON THE
SCHEDULE. HOWEVER, IT SHOULD BE BASED ON THE RATE OF POSSIBLE
DETERIORATION OF THE EQUIPMENT AND THE PROBABILITY OF AN ENVIRONMENTAL
OR HUMAN HEALTH INCIDENT IF THE DETERIORATION OR MALFUNCTION OR ANY
OPERATOR ERROR GOES UNDETECTED BETWEEN INSPECTIONS. AREAS SUBJECT TO
SPILLS, SUCH AS LOADING AND UNLOADING AREAS, MUST BE INSPECTED DAILY
WHEN IN USE. (COMMENT: PART 122, SUBPART B, OF THIS CHAPTER REQUIRES
THE INSPECATION SCHEDULE TO BE SUBMITTED WITH PART B OF THE PERMIT
APPLICATION. EPA WILL EVALUATE THE SCHEDULE ALONG WITH THE REST OF THE
APPLICATION TO ENSURE THAT IT ADEQUATELY PROTECTS HUMAN HEALTH AND THE
ENVIRONMENT. AS PART OF THIS REVIEW, EPA MAY MODIFY OR AMEND THE
SCHEDULE AS MAY BE NECESSARY.)
(C) THE OWNER OR OPERATOR MUST REMEDY ANY DETERIORATION OR
MALFUNCTION OF EQUIPMENT OR STRUCTURES WHICH THE INSPECTION REVEALS ON A
SCHEDULE WHICH ENSURES THAT THE PROBLEM DOES NOT LEAD TO AN
ENVIRONMENTAL OR HUMAN HEALTH HAZARD. WHERE A HAZARD IS IMMINENT OR HAS
ALREADY OCCURRED, REMEDIAL ACTION MUST BE TAKEN IMMEDIATELY.
(D) THE OWNER OR OPERATOR MUST RECORD INSPECTIONS IN INSPECTION LOG
OR SUMMARY. HE MUST KEEP THESE RECORDS FOR AT LEAST THREE YEARS FROM
THE DATE OF INSPECTION. AT A MINIMUM, THESE RECORDS MUST INCLUDE THE
DATE AND TIME OF THE INSPECTION, THE NAME OF THE INSPECTOR, A NOTATION
OF THE OBSERVATIONS MADE, AND THE DATE AND NATURE OF ANY REPAIRS OR
OTHER REMEDIAL ACTIONS.
(A)(1) FACILITY PERSONNEL MUST SUCCESSFULLY COMPLETE A PROGRAM OF
CLASSROOM INSTRUCTION OR ON-THE-JOB TRAINING THAT TEACHES THEM TO
PERFORM THEIR DUTIES IN A WAY THAT ENSURES THE FACILITITY'S COMPLIANCE
WITH THE REQUIREMENTS OF THIS PART. THE OWNER OR OPERATOR MUST ENSURE
THAT THIS PROGRAM INCLUDES ALL THE ELEMENTS DESCRIBED IN THE DOCUMENT
REQUIRED UNDER PARAGRAPH (D)(3) OF THIS SECTION.
(2) THIS PROGRAM MUST BE DIRECTED BY A PERSON TRAINED IN HAZARDOUS
WASTE INCLUDE INSTRUCTION WHICH TEACHES FACILITY PERSONNEL HAZARDOUS
WASTE MANAGEMENT PROCEDURES (INCLUDING CONTINGENCY PLANT IMPLEMENTATION)
RELEVANT TO THE POSITIONS IN WHICH THEY ARE EMPLOYED.
(3) AT A MINIMUM, THE TRAINING PROGRAM MUST BE DESIGNED TO
ENSURE THAT FACILITY PERSONNEL AR ABLE TO RESPON EFFECTIVELY TO
EMERGENCIES BY FAMILIARIZING THEM WITH EMERGENCY PROCEDURES,
EMERGENCY EQUIPMENT, AND EMERGENCY SYSTEMS, INCLUDING, WHERE
APPLICABLE:
(I) PROCEDURES FOR USING, INSPECTING, REPAIRING, AND REPLACING
FACILITY EMERGENCY AND MONITORING EQUIPMENT;
(II) KEY PARAMETERS FOR AUTOMATIC WASTE FEED CUT-OFF SYSTEMS;
(II) COMMUNICATIONS OR ALARM SYSTEMS;
(IV) RESPONSE TO FIRES OR EXPLOSIONS;
(V) RESPONSE TO GROUND-WATER CONTAMINATION INCIDENTS; AND
(VI) SHUTDOWN OF OPERATIONS.
(B) FACILITY PERSONNEL MUST SUCCESSFULLY COMPLETE THE PROGRAM
REQUIRED IN PARAGRAPH (A) OF THIS SECTION WITHIN SIX MONTHS AFTER THE
EFFECTIVE DATE OF THESE REGULATIONS OR SIX MONTHS AFTER THE DATE OF
THEIR EMPLOYMENT OR ASSIGNMENT TO A FACILITY, OR TO A NEW POSITION AT A
FACILITY, WHICHEVER IS LATER. EMPLOYEES HIRED AFTER THE EFFECTIVE DATE
OF THESE REGULATIONS MUST NOT WORK IN UNSUPERVISED POSITIONS UNTIL THEY
HAVE COMPLETED THE TRAINING REQUIREMENTS OF PARAGRAPH (A) OF THIS
SECTION.
(C) FACILITY PERSONNEL MUST TAKE PART IN AN ANNUAL REVIEW OF
THE INITIAL TRAINING REQUIRED IN PARAGRAPH (A) OF THIS SECTION.
(D) THE OWNER OR OPERATOR MUST MAINTAWN THE FOLLOWING DOCUMENTS AND
RECORDS AT THE FACILITY;
(1) THE JOB TITLE FOR EACH POSITION AT THE FACILITY RELATED TO
HAZARDOUS WASTE MANAGEMENT, AND THE NAME OF THE EMPLOYEE FILLING EACH
JOB
(2) A WRITTEN JOB DESCRIPTION FOR EACH POSITION LISTED UNDER
PARAGRAPH (D)(1) OF THIS SECTION. THIS DESCRIPTION MAY BE CONSISTENT IN
ITS DEGREE OF SPECIFICITY WITH DESCRIPTIONS FOR OTHER SIMILAR POSITIONS
IN THE SAME COMPANY LOCATION OR BARGAINING UNIT, BUT MUST INCLUDE THE
REQUISITE SKILL, EDUCATION, OR OTHER QUALIFICATIONS, AND DUTIES OF
EMPLOYEES ASSIGNED TO EACH POSITION; (3) A WRITTEN DESCRIPTION OF THE
TYPE AND AMOUNT OF BOTH INTRODUCTORY AND CONTINUING TRAINING THAT WILL
BE GIVEN TO EACH PERSON FILLING A POSITION LISTED UNDER PARAGRAPH (D)
(1) OF THIS SECTION
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 071 OF 106
COSTLE D M ADMINISTRATOR
EPA
113435
REGULATION
(4) RECORDS THAT DOCUMENT THAT THE TRAINING OR JOB EXPERIENCE
REQUIRED UNDER PARAGRAPHS (A), (B), AND (C) OF THIS SECTION HAS BEEN
GIVEN TO, AND COMPLETED BY, FACILITY PERSONNEL.
(E) TRAINING RECORDS ON CURRENT PERSONNEL MUST BE KEPT UNTIL CLOSURE
OF THE FACILITY; TRAINING RECORDS ON FORMER EMPLOYEES MUST BE KEPT FOR
AT LEAST THREE YEARS FORM THE DATE THE EMPLOYEE LAST WORKED AT THE
FACILITY. PERSONNEL TRAINING RECORDS MAY ACCOMPANY PERSONNEL
TRANSFERRED WITHIN THE SAME COMAPNY.
THE REGULATIONS IN THIS SUBPART APPLY TO OWNERS AND OPERATORS OF ALL
HAZARDOUS WASTE FACILITIES, EXCEPT AS SECTIONS 264.1 PROVIDES OTHERWISE.
FACILITIES MUST BE DESIGNED, CONTSRUCTED, MAINTAINED, AND OPERATED TO
MINIMIZE THE POSSIBILITY OF FIRE, EXPLOSION, OR ANY UNPLANNED SUDDEN OR
NON-SUDDEN RELEASE OF HAZARDOUS WASTE OR HAZARDOUS WASTE CONSTITUENTS TO
AIR, SOIL, OR SUFACE WATER WHICH COULD THREATEN HUMAN HEALTH OR THE
ENVIRONMENT.
ALL FACILITIES MUST BE EQUIPPED WITH THE FOLLOWING, UNLESS IT CAN BE
DEMONSTRATED TO THE REGIONAL ADMINISTRATOR THAT NONE OF THE HAZARDS
POSED BY WASTE HANDLED AT THE FACILITY COULD REQUIRE A PARTICULAR KIND
OF EQUIPMENT SPECIFIED BELOW;
(A) AN INTERNAL COMMUNICATIONS OR ALARM SYSTEM CAPABLE OF PROVIDING
IMMEDIATE EMERGENCY INSTRUCTION (VOICE OR SIGNAL) TO FACILITY PERSONNEL;
(B) A DEVICE, SUCH AS A TELEPHONE (IMMEDIATELY AVAILABLE AT THE SCENE
OF OPERATIONS) OR A HAND-HELD TWO-WAY RADIO, CAPABLE OF SUMMONING
EMERGENCY ASSISTANCE FROM THE LOCAL POLICE DEPARTMENTS, FIRE DEPARTMENT,
OR STATE OR LOCAL EMERGENCY RESPONSE TEAMS;
(C) PORTABLE FIRE EXTINGUISHERS, FIR CONTROL EQUIPMENT (INCLUDING
SPECIAL EXTINGUISHING EQUIPMENT, SUCH AS THAT USING FOAM, INERT GAS, OR
DRY CHEMICALS), SPILL CONTROL EQUIPMENT AND DECONTAMINATION EQUIPMENT;
AND
(D) WATER AT ADEQUATE VOLUME AND PRESSURE TO SUPPLY WATER HOSE
STREAMS, OR FOAM PRODUCING EQUIPMENT, OR AUTOMATIC SPRINKLERS, OR WATER
SPRAY SYSTEMS.
(COMMENT: PART 122, SUBPART B, OF THIS CHAPTER REQUIRES THAT AN
OWNER OR OPERATOR WHO WISHES TO MAKE THE DEMONSTRATION REFERRED TO ABOVE
MUST DO SO WITH PART B OF THE PERMIT APPLICATION.)
ALL FACILITY COMMUNICATIONS OR ALARM SYSTEMS, FIR PROTECTION
EQUIPMENT, SPILL CONTROL EQUIPMENT, AND DECONTAMINATION EQUIPMENT, WHERE
REQUIRED, MUST BE TESTED AND MAINTAINED AS NECESSARY TO ASSURE ITS
PROPER OPERATION IN TIME OF EMERGENCY
(A) WHENEVERY HAZARDOUS WASTE IS BEING POURED, MIXED, SPREAD, OR
OTHERWISE HANDLED, ALL PERSONNEL INVOLVED IN THE OPERATION MUST HAVE
IMMEDIATE ACCESS TO AN INTERNAL ALARM OR EMERGENCY COMMUNICATION DEVICE,
EITHER DIRECTLY OR THROUGH VISUAL OR VOICE CONTACT WITH ANOTHER
EMPLOYEE, UNLESS THE REGIONAL ADMINISTRATOR HAS RULES THAT SUCH A DEVICE
IS NOT REQUIRED UNDER SECTION 264.32.
(B) IF THERE IS EVER JUST ONE EMPLOYEE ON THE PREMISES WHILE THE
FACILITY IS OPERATING, HE MUST HAVE IMMEDIATE ACCESS TO A DEVICE, SUCH
AS A TELEPHONE (IMMEDIATELY AVAILABLE AT THE SCENE OF OPERATION) OR A
HAND-HELD TWO-WAY RADIO, CAPABLE OF SUMMONING EXTERNAL EMERGENCY
ASSISTANCE, UNLESS THE REGIONAL ADMINISTRATOR HAS RULES THAT SUCH A
DEVICE IS NOT REQUIRED UNDER SECTION 264.32.
THE OWNER OR OPERATOR MUST MAINTAIN AISLE SPACE TO ALLOW THE
UNOBSTRUCTED MOVEMENT OF PERSONNEL, FIRE PROTECTION EQUIPMENT, SPILL
CONTROL EQUIPMENT, AND DECONTAMINATION EQUIPMENT TO ANY AREA OF FA-ILITY
OPERATION IN AN EMERGENCY, UNLESS IT CAN BE DEMONSTRATED TO THE REGIONAL
ADMINISTRATOR THAT AISLE SPACE IS NOT NEEDED FOR ANY OF THESE PURPOSES.
(COMMENT: PART 122, SUBPART B, OF THIS CHAPTER REQUIRES THAT AN
OWNER OR OPERATOR WHO WISHES TO MAKE THE DEMONSTRATION REFERRED TO ABOVE
MUST DO SO WITH PART B OF THE PERMIT APPLICATION.)
THE OWNER OR OPERATOR MUST TAKE PRECAUTIONS TO PRVENT ACCIDENTAL
IGNITION OR REACTION OF IGNITABLE OR REACTIVE WASTE. THIS WASTE MUST BE
SEPARATED AND PROTECTED FROM SOURCE OF IGNITION OR REACTION INCLUDING
BUT NOT LIMITED TO: OPEN FLAMES, SMOKING, CUTTING AND WELDING, HOT
SURFACES, FRICTIONAL HEAT, SPARKS (STATIC, ELECTRICAL, OR MECHANICAL),
SPONTANEOUS IGNITION (E.G., FROM HEAT-PRODUCING CHEMICAL REACTIONS), AND
RADIANT HEAT. WHILE IGNITIABLE OR REACTIVE WASTE IS BEING HANDLED THE
OWNER OR OPERATOR MUST CONFINE SMOKING AND OPER FLAME TO SPECIALLY
DESIGNATED LOCATION. "NO SMOKING" SIGNS MUST BE CONSPICUOUSLY PLACED
WHEREVER THERE IS A HAZARD FROM IGNITABLE OR REACTIVE WASTE.
(A) THEOWNER OR OPERATOR MUST ATTEMPT TO MAKE THE FOLLOWING
ARRANGEMENTS, AS APPROPRIATE FOR THE TYPE OF WASTE HANDLED AT HIS
FACILITY AND THE POTENTIAL NEED FOR THE SERVICES OF THESE ORGANIZATIONS:
(1) ARRANGEMENTS TO FAMILIARIZE POLICE, FIRE DEPARTMENT, AND
EMERGENCY RESPONSE TEAMS WITH THE LAYOUT OF THE FACILITY, PROPERTIES OF
HAZARDOUS WASTE HANDLED AT THE FACILITY AND ASSOCIATED HAZARDS, PLACES
WHERE FACILITY PERSONNEL WOULD NORMALLY BE WORKING, ENTRACES TO THE
ROADS INSIDE THE FACILITY, AND POSSIBLE EVACUATION ROUTES;
(2) WHERE MORE THAN ONE POLICE AND FIRE DEPARTMENT MIGHT RESPOND TO
AN EMERGENCY, AGREEMENTS DESIGNATING PRIMARY EMERGENCY AUTHORITY TO A
SPECIFIC POLICE AND A SPECIFIC FIR DEPARTMENT, AND AGREEMENTS WITH ANY
OTHER TO PROVIDE SUPPORT TO THE PRIMARY EMERGENCY AUTHORITY;
(3) AGREEMENTS WITH STATE EMERGENCY RESPONSE TEAMS, EMERGENCY
RESPONSE CONTRACTORS, AND EQUIPMENT SUPPLIERS; AND
(4) ARRANGEMENTS TO FAMILIARIZE LOCAL HOSPITALS WITH THE PROPERTIES
OF HAZARDOUS WASTE HANDLED AT THE FACILITY AND THEY TYPES OF INJURIES OR
ILLNESSES WHICH COULD RESULT FROM FIRES, EXPLOSIONS, OR RELEASES AT THE
FACILITY.
(B) WHERE STATE OR LOCAL AUTHORITIES DECLINE TO ENTER INTO SUCH
ARRANGEMENTS, THE OWNER OR OPERATOR MUST DOCUMENT THE REFUSAL IN THE
OPERATING RECORD.
THE REGULATIONS IN THIS SUBPART APPLY TO OWNERS AND OPERATORS OF ALL
HAZARDOUS WASTE FACILITIES, EXCEPT AS SECTION 264.1 PROVIDES OTHERWISE.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 072 OF 106
COSTLE D M ADMINISTRATOR
EPA
113436
REGULATION
(A) EACH OWNER OR OPERATOR MUST HAVE A CONTINGENCY PLANT FOR HIS
FACILITY. THE CONTINGENCY PLANT MUST BE DESIGNED TO MINIMIZE HAZARDS TO
HUMAN HEALTH OR THE ENVIRONMENT FROM FIRES, EXPLOSIONS, OF ANY UNPLANNED
SUDDEN OR NON-SUDDEN RELEASE OF HAZARDOUS WASTE OR HAZARDOUS WASTE
CONSTITUENTS TO AIR, SOIL, OR SURFACE WATER.
(B) THE PROVISIONS OF THE PLAN MUST BE CARRIED OUR IMMEDIATELY
WHENEVER THERE IS A FIR, EXPLOSION, OR RELEASE OF HAZARDOUS WASTE OR
HAZARDOUS WASTE CONSITUENTS WHICH COULD THREATEN HUMAN HEALTH OR THE
ENVIRONMENT.
(A) THE CONTINGENCY PLANT MUST DESCRIBE THE ACTIONS FACILITY
PERSONNEL MUST TAKE TO COMPLY WITH SECTIONS 264.51 AND 264.56 IN
RESPONSE TO FIRES, EXPLOSIONGS OR ANY UNPLANNED SUDDED OR NON-SUDDEN
RELEASE OF HAZARDOUS WASTE OR HAZARDOUS WASTE CONSTITUENTS TO AIR, SOIL,
OR SURFACE WATER AT THE FACILITY.
(B) IF THE OWNER OR OPERATOR HAS ALREADY PREPARED A SPILL PREVENTION,
CONTROL COUNTERMEASURES (SPCC) PLAN IN ACCORDANCE WITH PART 112 OR PART
151 OF THIS CHAPTER, OR SOME OTHER EMERGENCY OR CONTINGENCY PLAN, HE
NEED ONLY AMEND THAT PLAN TO INCORPORATE HAZARDOUS WASTE MANAGEMENT
PROVISIONS THAT ARE SUFFICIENT TO COMPLY WITH THE REQUIREMENTS OF THIS
PART.
(C) THE PLANT MUST DESCRIBE ARRANGEMENTS AGREED TO BY LOCAL POLICE
DEPARMENTS, FIRE DEPARTMENT, HOSPITALS, CONTRACTORS, AND STATE AND LOCAL
EMERGENCY REPSONSE TEAMS TO COORDINATE EMERGENCY SERVICES, PURSUANT TO
SECTUON 264.37.
(D) THE PLAN MUST LISTE NAMES, ADDRESSES, AND PHONE NUMBERS (OFFICE
AND HOME) OF ALL PERSONS QUALIFIED TO ACT AS EMERGENCY COORDINATOR (SEE
SECTION 264.55), AND THIS LISTE MUST BE KEPT UP TO DATE. WHERE MORE
THAN ONE PERSON IS LISTED, ONE MUST BE NAMED AS PRIMARY EMERGENCY
COORDINATOR AND OTHER MUST BE LISTED IN THE ORDER IN WHICH THEY WILL BE
LISTED IN ORDER IN WHICH THEY WILL ASSUME RESPONSIBILITY AS ALTERNATES.
FOR NEW FACILITIES, THIS INFORMATION MUST BE SUPPLIED TO THE REGIONAL
ADMINISTRATOR AT THE TIME OF CERTIFICATION, RATHER THAN AT THE TIME OF
PERMIT APPLICATION.
(E) THE PLANT MUST INCLUDE A LIST OF ALL EMERGENCY EQUIPMENT AT THE
FACILITY (SUCH AS FIRE EXTINGUISHING SYSTEMS, SPILL CONTROL EQUIPMENT,
COMMUNICATIONS AND ALARM SYSTEMS (INTERNAL AND EXTERNAL), AND
DECONTAMINATION EQUIPMENT), WHERE THIS EQUIPMENT IS REQUIRED. THIS LIST
MUST BE KEPT UP TO DATE. IN ADDITION, THE PLAN MUST INCLUDE THE
LOCATION AND A PHYSICAL DESCRIPTION OF EACH ITEM ON THE LIST, AND A
BRIEF OUTLINE OF ITS CAPABILITIES.
(F) THE PLAN MUST INCLUDE AN EVACUATION PLANT FOR FACILITY PERSONNEL
WHERE THERE IS A POSSIBILITY THAT EVACUATION COULD BE NECESSARY. THIS
EVALUATION COULD BE NECESSARY. THIS PLAN MUST DESCRIBE SIGNAL(S) TO BE
USEDTO BEGIN EVACUATION, EVACUATION ROUTES, AND ALTERNATE EVACUATION
ROUTES (IN CASES WHERE THE PRIMARY ROUTES COULD BE BLOCKED BY RELEASES
OF HAZARDOUS WASTE OR FIRES).
A COPY OF THE CONTINGENCY PLAN AND ALL REVISIONS TO THE PLAN MUST BE:
(A) MAINTAINED AT THE FACILITY; AND
(B) SUBMITTED TO ALL LOCAL POLICE DEPARTMENTS, FIRE DEPARTMENTS,
HOSPITALS, AND STATE AND LOCAL EMERGENCY RESPONSE TEAMS THAT MAY BE
CALLED UPON TO PROVIDE EMERGENCY SERVICES.
(COMMENT: THE CONTINGENCY PLANT MUST BE SUBMITTED TO THE REGIONAL
ADMINISTRATOR WITH PART B OF THE PERMIT APPLICATION UNDER PART 122,
SUBPARTS A AND B, OF THIS CHAPTER AND, AFTER MODFICATION AND APPROVAL,
WILL BECOME AS CONDITION OF ANY PERMIT ISSUED.)
THE CONTINGENCY PLAN MUST BE REVIEWED, AND IMMEDIATELY AMENDED.
IF NECESSARY, WHENEVER.
(A) THE FACILITY PERMIT IS REVISED;
(B) THE PLAN FAILS IN AN EMERGENCY;
(C) THE FACILITY CHANGES-IN ITS DESIGN, CONSTRUCTION, OPERATION,
MAINTENANCE, OR OTHER CIRCUMSTANCES-IN A WAY THAT MATERIALLY INCREASES
THE POTENTIAL FOR MATERIALLY INCREASES THE POTENTAIL FOR FIRES,
EXPLOSIONS, OR RELEASES OF HAZARDOUS WASTE OR HAZARDOUS WASTE
CONSTITUENTS, OR CHANGES THE RESPONSE NECESSARY IN AN EMERGENCY;
(D) THE LIST OF EMERGENCY COORDINATORS CHANGES; OR
(E) THE LIST OF EMERGENCY EQUIPMENT CHANGES.
(COMMENT: A CHANGE IN THE LISTS OF FACILITY EMERGENCY COORDINATORS
FOR EQUIPMENT IN THE CONTINGENCY PLAN CONSTITUTES A MINOR MODIFICATION
TO THE FACILITY PERMIT TO WHICH THE PLAN IS A CONDITION.)
AT ALL TIMES, THERE MUST BE AT LEAST ONE EMPLOYEE EITHER ON THE
FACILITY PREMISES OR ON CALL(I.E., AVAILABLE TO RESPOND TO AN EMERGENCY
BY REACHING THE FACILITY WITHIN A SHORT PERIOD OF TIME) WITH THE
RESPONSBILITY FOR COORDINATING ALL EMERGENCY RESPONSE MEASURES. THIS
EMERGENCY COORDINATOR MUST BE THROUGHLY FAMILIAR WITH ALL ASPECTS OF THE
FACILITY'S CONTINGENCY PLAN, ALL OPERATIONS AND ACTIVITIES AT THE
FACILITY, THE LOCATION AND CHARACTERISTICS OF WASTE HANDLED, THE
LOCATION OF ALL RECORDS WIHTIN THE FACILITY, AND THE FACILITY LAYOUT, IN
ADDITION THIS PERSON MUST HAVE THE AUTHORITY TO COMMIT THE RESOURCES
NEEDED TO CARRY OUT THE CONTINGENCY PLAN.
(COMMENT: THE EMERGENCY COORDINATOR'S RESPONSIBILITIES ARE MORE
FULLY SPELLED OUT IN SECTION 264.56. APPLICABLE RESPONSIBILITES FOR THE
EMERGENCY COORDINATOR VARY, DEPEDNING ON THE FACTORS SCUH AS TYPE AND
VARIETY OF WASTE(S) HANDLED BY THE FACILITY, AND TYPE AND COMPLEXITY OF
THE FACILITY.)
(A) WHENEVER THERE IS AN IMMINENT OR ACTUAL EMERGENCY SITUATION, THE
EMERGENCY SITUATION, THE EMERGENCY COORDINATOR (OR HIS DESIGNEE WHEN THE
EMERGENCY COORDINATOR IS ON CALL) MUST IMMEDIATELY:
(1) ACTIVATE INTERNAL FACILITY ALARMS OR COMMUNICATION SYSTEMS
WHERE APPLICABLE, TO NOTIFY ALL FACILITY PERSONNEL; AND
(2) NOTIFY APPROVIATE STATE OR LOCAL AGENCIES WITH DESIGNATED
RESPONSE ROLES IF THEIR HELP IS NEEDED.
(B) WHENEVER THERE IS A RELEASE, FIRE OR EXPLSOION, THE EMERGENCY
COORDINATOR MUST IMMEDIATELY IDENTIFY THE CHARACTER, EXACT SOURCE,
AMOUNT, AND AREAL EXTENT OF ANY RELEASE MATERIALS. HE MAY DO THIS BY
THE OBSERVATION OR REVIEW OF FACILITIY RECORDS OR MANIFESTS, AND IF
NECESSARY, BY CHEMICAL ANALYSIS.
(C) CONCURRENTLY, THE EMERGENCYCOORDINATOR MUST ASSESS POSSIBLE
HAZARDS TO HUMAN HEALTH OR THE ENVIRONMENT THAT MAY RESULT FROM THE
RELEASE, FIR, OR EXPLSION. THIS ASSESSMENT MUST CONSIDER BOTH DIRECT
AND INDIRECT EFFECTS OF THE RELEASE, FIRE, OR EXPLSION (E.G., THE
EFFECTS OF ANY TOXIC, IRRIATING, OR ASPHYXIATING GASES THAT ARE
GENERATED, OR THE EFFECTS OF ANY HAZARDOUS SURFACE WATER RUN-OFF FROM
WATER OR CHEMICAL AGENTS USED TO CONTROL FIRE AND HEAT-INDUCED
EXPLOSIONS).
(D) IF THE EMERGENCY COORDINATOR DETERMINES THAT THE FACILITY HAS HAD
A RELEASE, FIRE, OR EXPLOSION WHICH COULD THREATEN HUMAN HEALTH, OR THE
ENVIRONMENT, OUTSIDE THE FACILITY, HE MUST REPORTE HIS FINDINGS AS
FOLLOWS:
(1) IF HIS ASSESSMENT INDICATES THAT EVACUATION OF LOCAL AUTHORITIES,
HE MUST BE AVAILABLE TO HELP APPROPRIATE OFFICIALS DECIDE WHETHER LOCAL
AREAS SHOULD BE EVACUATED; AND
HE MUST IMMEDIATELY NOTIFY EITHER THE GOVERNMENT OFFICIAL DESIGNATED
AS THE ON-SCENE COORDINATOR FOR THAT GEOGRAPHICAL AREA, (IN THE
APPLICABLE REGIONAL CONTINGENCY PLAN UNDER PART 1510 OF THIS TITLE) OR
THE NATIONAL RESPONSE CENTER (USING THEIR 24-HOUR TOLL FREE NUMBER
800/424-8802). THE REPORT MUST INCLUDE.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 073 OF 106
COSTLE D M ADMINISTRATOR
EPA
113437
REGULATION
(I) NAME AND TELEPHONE NUMBER OF REPORTER;
(II) NAME AND ADDRESS OF FACILITY;
(III) TIME AND TYPE OF INCIDENT (E.G., RELEASE, FIRE);
(IV) NAME AND QUANTITY OF MATERIAL(S) INVOLVED, TO THE EXTENT
INVOLVED, TO THE EXTENT KNOWN:
(V) THE EXTENT OF INJURIES, IF ANY; AND
(VI) THE POSSIBLE HAZARDS TO HUMAN HEALTH, OR THE ENVIRONMENT,
OUTSIDE THE FACILITY.
(E) DURING AN EMERGENCY, THE EMERGENCY COORDINATOR MUST TAKE ALL
RESONABLE MEASURES NECESSARY TO ENSURE THAT FIRES, EXPLOSIONS, AND
RELEASES DO NOT OCCUR, RECUR, OR SPREAD TO OTHER HAZARDOUS WASTE AT THE
FACILITY. THESE MEASURES MUST INCLUDE, WHERE APPLICABLE, STOPPING
PROCESS AND OPERATIONS, COLLECTING AND CONTAINING RELEASE WASTE, AND
REMOVING OR ISOLATING CONTAINERS.
(F) IF THE FACILITY STOPS OPERATIONS IN RESPONSE TO A FIRE,
EXPLOSION, OR RELEASE, THE EMERGENCY COORDINATOR MUST MONITOR FOR LEAKS,
PRESSURE BUILDUP, GAS GENERATION, OR RUPTURES IN VALVES, PIPES, OR OTHER
EQUIPMENT, WHEREVER THIS IS APPROPRIATE.
(G) IMMEDIATELY AFTER AN EMERGENCY, THE EMERGENCY COORDINATOR MUST
PROVIDE FOR TREATING, STORING, OR DISPOSING OF RECOVERED WASTE,
CONTAMINATED SOIL OR SURFACE WATER, OR ANY OTHER MATERIAL THAT RESULTS
FROM A RELEASE, FIRE, OR EXPLOSION AT THE FACILITY.
(COMMENT: UNLESS THE OWNER OR OPERATOR CAN DEMONSTRATE, IN
ACCORDANCE WITH SECTION 261.3(C) OR (D) OF THIS CHAPTER, THAT THE
RECOVERED MATERIAL IS NOT A HAZARDOUS WASTE, THE OWNER OR OPERATOR
BECOMES A GENERATOR OF HAZARDUS WASTE AND MUST MANAGE IT IN ACCORDA-CE
WITH ALL APPLICABLE REQUIREMENTS OF PARTS 262, 263, AND 264 OF THIS
CHAPTER.)
(H) THE EMERGENCY COORDINATOR MUST ENSURE THAT, IN THE AFFECTED
AREA(S) OF THE FACILITY:
(1) NO WASTE THAT MAY BE INCOMPATIBLE WITH THE RELEASED MATERIAL IS
TREATED, STORED, OR DISPOSED OF UNTIL CLEANUP PROCEDURES ARE COMPLETED;
AND
(2) ALL EMERGENCY EQUIPMENT LISTED IN THE CONTINGENCY PLAN IS CLEANED
AND FIT FOR ITS INTENDED USE BEFORE OPERATIONS ARE RESUMED.
(I) THE OWNER OR OPERATOR MUST NOTIFY THE REGIONAL ADMINISTRATOR, AND
APPROPRIATE STATE AND LOCAL AUTHORITIES, THAT THE FACILITY IS IN
COMPLIANCE WITH PARAGRAPH (H) OF THIS SECTION BEFORE OPERATIONS ARE
RESUMED IN THE AFFECTED AREA(S) OF THE FACILITY.
(J) THE OWNER OR OPERATOR MUST NOTE IN THE OPERATING RECORD THE TIME,
DATE, AND DETAILS OF ANY INCIDENT EHAT REQUIRES IMPLEMENTING THE
CONTINGENCY PLAN. WITHIN 15 DAYS AFTER THE INCIDENT, HE MUST SUBMIT A
WRITTEN REPORT ON THE INCIDENT TO THE REGIONAL ADMINISTRATOR. THE
REPORT MUST INCLUDE:
(1) NAME, ADDRESS, AND TELEPHONE NUMBER OF THE OWNER OR OPERATOR;
(2) NAME, ADDRESS, AND TELEPHONE NUMBER OF THE FACILITY;
(3) DATE, TIME, AND TYPE OF INCIDENT (E.G., FIRE, EXPLOSION);
(4) NAME AND QUANTITY OF MATERIAL(S) INVOLVED;
(5) THE EXTENT OF INJURIES, IF ANY;
(6) AN ASSESSMENT OF ACTUAL OR POTENTIAL HAZARDS TO HUMAN HEALTH OR
THE ENVIRONMENT, WHERE THIS IS APPLICABLE; AND
(7) ESTIMATED QUANTITY AND DISPOSITION OF RECOVERED MATERIAL THAT
RESULTED FROM THE INCIDENT.
THE REGULATIONS IN THIS SUBPART APPLY TO OWNERS AND OPERATORS OF BOTH
ON-SIRE AND OFFSITE FACILITIES, EXCEPT AS SECTION 264.1 PROVIDES
OTHERWISE. SECTIONS 264.71, 264.72, AND 264.76 DO NOT APPLY TO OWNERS
AND OPERATORS OF ON-SITE FACILITIES THAT DO NOT RECIEVE ANY HAZARDOUS
WASTE FROM OFF-SITE SOURCES.
(A) IF A FACILITY RECEIVES HAZARDOUS WASTE ACCOMPANIED BY A MANIFEST,
THE OWNER OR OPERATOR, OR HIS AGENT, MUST:
(1) SIGN AND DATE EACH COPY OF THE MANIFEST TO CERTIFY THAT THE
HAZARDOUS WASTE COVERED BY THE MANIFEST WAS RECEIVED;
(2) NOTE ANY SIGNIFICANT DISCREPANCIES IN THE MANIFEST (AS DEFINED IN
SECTION 264.72(A)) ON EACH COPY OF THE MANIFEST;
(COMMENT: THE AGENCY DOES NOT INTEND THAT THE OWNER OR OPERATOR OF A
FACILITY WHOSE PROCEDURES UNDER SECTION 264.13(C) INCLUDE WASTE ANALYSIS
MUST PERFORM THAT ANALYSIS BEFORE SIGNING THE MANIFEST AND GIVING IT TO
THE TRANSPORTER. SECTION 264.72(B), HOWEVER, REQUIRES REPORTING AN
UNRECONCILED DISCREPANCY DISCOVERED DURING LATER ANALYSIS.)
(3) IMMEDIATELY GIVE THE TRANSPORTER AT LEAST ONE COPY OF THE SIGNED
MANIFEST;
(4) WITHIN 30 DAYS AFTER THE DELIVERY, SEND A COPY OF THE MANIFEST TO
THE GENERATOR; AND
(5) RETAIN AT THE FACILITY A COPY OF EACH MANIFEST FOR AT LEAST THREE
YEARS FROM THE DATE OF DELIVERY.
(B) IF A FACILITY RECEIVES, FROM A RAIL OR WATER (BULK SHIPMENT)
TRANSPORTER, HAZARDOUS WASTE WHICH IS ACCOMPANIED BY A SHIPPING PAPER
CONTAINING ALL THE INFORMATION REQUIRED ON THE MANIFEST (EXCLUDING THE
EPA IDENTIFICATION NUMBERS, GENERATOR'S CERTIFICATION, AND SIGNATURES),
THE OWNER OR OPERATOR, OR HIS AGENT, MUST:
(1) SIGN AND DATE EACH COPY OF THE SHIPPING PAPER TO CERTIFY THAT THE
HAZARDOUS WASTE COVERED BY THE MANIFEST WAS RECEIVED:
(2) NOTE ANY SIGNIFICANT DISCREPANCIES IN THE MANIFEST (AS DEFINED IN
SECTION 264.72(A)) ON EACH COPY OF THE MANIFEST; (COMMENT: THE AGENCY
DOES NOT INTEND THAT THE OWNER OR OPERATOR OF A FACILITY WHOSE
PROCEDURES UNDER SECTION 264.13(C) INCLUDE WASTE ANALYSIS MUST PERFORM
THAT ANALYSIS BEFORE SIGNING THE MANIFEST AND GIVING IT TO THE
TRANSPORTER. SECTION 264.72(B) HOWEVER, REQUIRES REPORTING AN
UNRECONCILED DISCREPANCY DISCOVERED DURING LATER ANALYSIS.)
(3) IMMEDIATELY GIVE THE TRANSPORTER AT LEAST ONE COPY OF THE SIGEND
MANIFEST;
(4) WITHIN 30 DAYS AFTER THE DELIVERY, SEND A COPY OF THE MANIFEST TO
THE GENERATOR; AND
(5) RETAIN AT THE FACILITY A COPY OF EACH MANIFEST FOR AT LEAST THREE
YEARS FROM THE DATE OF DELIVERY.
(B) IF A FACILITY RECEIVES, FROM A RAIL OR WATER (BULK SHIPMENT)
TRANSPORTER, HAZARDOUS WASTE WHICH IS ACCOMPANIED BY A SHIPPING PAPER
CONTAINING ALL THE INFORMATION REQUIRED ON THE MANIFEST (EXCLUDING THE
EPA IDENTIFICATION NUMBERS, GENERATOR'S CERTIFICATION, AND SIGNATURES),
THE OWNER OR OPERATOR, OR HIS AGENT MUST:
(1) SIGN AND DATE EACH COPY OF THE SHIPPING PAPER TO CERTIFY THAT THE
HAZARDOUS WASTE COVERED BY THE SHIPPING PAPER WAS RECEIVED;
(2) NOTE ANY SIGNIFICANT DISCREPANCIES IN THE SHIPPING PAPER (AS
DEFINED IN SECTION 264.72(A)) ON EACH COPY OF THE SHIPPING PAPER.
(COMMENT: THE AGENCY DOES NOT INTEND THAT THE OWNER OR OPERATOR OF A
FACILITY WHOSE PROCEDURES UNDER SECTION 264.13(C) INCLUDE WASTE ANALYSIS
MUST PERFORM THAT ANALYSIS BEFORE SIGNING THE SHIPPING PAPER AND GIVING
IT TO THE TRANSPORTER. SECTION 264.72(B), HOWEVER, REQUIRES REPORTING
AN UNRECONCILED DISCREPANCY DISCOVERED DURING LATER ANALYSIS.)
(3) IMMEDIATELY GIVE THE RAIL OR WATER (BULK SHIPMENT) TRANSPORTER AT
LEAST ONE COPY OF THE SHIPPING PAPER;
(4) WITHIN 30 DAYS AFTER THE DELIVERY, SEND A COPY OF THE OF THE
SHIPPING PAPER TO THE GENERATOR; HOWEVER, IF THE MANIFEST IS RECEIVED
WITHIN 30 DAYS AFTER THE DELIVERY, THE OWNER OR OPERATOR, OR HIS AGENT,
MUST SIGN AND DATE THE MANIFEST AND RETURN IT TO THE GENERATOR IN LIEU
OF THE SHIPPING PAPER; AND
(COMMENT: SECTION 262.23(C) OF THIS CHAPTER REQUIRES THE GENERATOR
TO SEND THREE COPIES OF THE MANIFEST TO THE FACILITY WHEN HAZARDOUS
WASTE IS SENT BY RAIL OR WATER (BULK SHIPMENT).)
(5) RETAIN AT THE FACILITY A COPY OF EACH SHIPPING PAPER AND MANIFEST
FOR AT LEAST THREE YEARS FROM THE DATE OF DELIVERY.
(A) MANIFEST DISCREPANCIES ARE DIFFERENCS BETWEEN THE QUANTITY OR
TYPE OF HAZARDOUS WASTE DESIGNATED ON THE MANIFEST OR SHIPPING PAPER,
AND THE QUANTITY OR TYPE OF HAZARDOUS WASTE A FACILITY ACTUALLY
RECEIVES. SIGNIFICANT DISCREPANCIES IN QUANTITY ARE: (1) FOR BULK
WASTE, VARIATIONS GREATER THAN 10 PERCENT IN WEIGHT, AND (2) FOR BATCH
WASTE, ANY VARIATION IN PIECE COUNT, SUCH AS A DISCREPANCY OF ONE DRUM
IN A TRUCKLOAD. SIGNIFICANT DISCREPANCIES IN TYPE ARE OBVIOUS
DIFFERENCES WHICH CAN BE DISCOVERED BY INSPECTION OR WASTE ANALYSIS,
SUCH AS WASTE SOLVENT SUBSTITUTED FOR WASTE ACID, OR TOXIC CONSTITUENTS
NOT REPORTED ON THE MANIFEST OR SHIPPING PAPER.
(B) UPON DISCOVERING A SIGNIFICANT DISCREPANCY, THE OWNER OR OPERATOR
MUST ATTEMPT TO RECONCILE THE DISCREPANCY WITH THE WASTE GENERATOR OR
TRANSPORTER (E.G., WITH TELEPHONE CONVERSATIONS).
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 074 OF 106
COSTLE D M ADMINISTRATOR
EPA
113438
REGULATION
IF THE DISCREPANCY IS NOT RESOLVED WITHIN 15 DAYS AFTER RECEIVING THE
WASTE, THE OWNER OR OPERATOR MUST IMMEDIATELY SUBMIT TO THE REGIONAL
ADMINISTRATOR A LETTER DESCRIBING THE DISCREPANCY AND ATTEMPTS TO
RECONCILE IT, AND A COPY OF THE MANIFEST OR SHIPPING PAPER AT ISSUE.
(A) THE OWNER OR OPERATOR MUST KEEP A WRITTEN OPERATING RECORD AT HIS
FACILITY.
(B) THE FOLLOWING INFORMATION MUST BE RECORDED, AS IT BECOMES
AVAILABLE, AND MAINTAINED IN THE OPERATING RECORD UNTIL CLOSURE OF THE
FACILITY:
(1) A DESCRIPTION AND THE QUANTITY OF EACH HAZARDOUS WASTE RECEIVED,
AND THE METHOD(S) AND DATES OF ITS TREATMENT, STORAGE, OR DISPOSAL AT
THE FACILITY AS REQUIRED BY APPENDIX I;
(2) THE LOCATION OF EACH HAZARDOUS WASTE WITHIN THE FACILITY AND THE
QUANTITY AT EACH LOCATION. FOR DISPOSAL FACILITIES, THE LOCATION AND
QUANTITY OF EACH HAZARDOUS WASTE MUST BE RECORDED ON A MAP OR DIAGRAM OF
EACH CELL OR DISPOSAL AREA. FOR ALL FACILITIES, THIS INFORMATION MUST
INCLUDE CROSS-REFERENCES TO SPECIFIC MANIFEST DOCUMENT NUMBERS, IF THE
WASTE WAS ACCOMPANIED BY A MANIFEST;
(3) RECORDS AND RESULTS OF WASTE ANALYSES PERFORMED AS SPECIFIED IN
SECTION 264.13;
(4) SUMMARY REPORTS AND DETAILS OF ALL INCIDENTS THAT REQUIRE
IMPLEMENTING THE CONTINGENCY PLAN AS SPECIFIED IN SECTION 264.56(J);
(5) RECORDS AND RESULTS OF INSPECTIONS AS REQUIRED BY SECTION
264.15(D) (EXCEPT THESE DATA NEED BE KEPT ONLY THREE YEARS); AND
(6) FOR OFF-SITE FACILITIES, NOTICES TO GENERATORS AS SPECIFIED IN
SECTION 264.12(B).
(A) ALL RECORDS, INCLUDING PLANS, REQUIRED UNDER THIS PART MUST BE
FURNISHED UPON REQUEST, AND MADE AVAILABLE AT ALL REASONABLE TIMES FOR
INSPECTION, BY ANY OFFICER, EMPLOYEE, OR REPRESENTATIVE OF EPA WHO IS
DULY DESIGNATED BY THE ADMINISTRATOR.
(B) THE RETENTION PERIOD FOR ALL RECORDS REQUIRED UNDER THIS PART IS
EXTENDED AUTOMATICALLY DURING THE COURSE OF ANY UNRESOLVED ENFORCEMENT
ACTION REGARDING THE FACILITY OR AS REQUESTED BY THE ADMINISTRATOR.
(C) A COPY OF RECORDS OF WASTE DISPOSAL LOCATIONS AND QUANTITIES
UNDER SECTION 264.73(B)(2) MUST BE SUBMITTED TO THE REGIONAL
ADMINISTRATOR AND LOCAL LAND AUTHORITY UPON CLOSURE OF THE FACILITY.
THE OWNER OR OPERATOR MUST PREPARE AND SUBMIT A SINGLE COPY OF AN
ANNUAL REPORT TO THE REGIONAL ADMINISTRATOR BY MARCH 1 OF EACH YEAR.
THE REPORT FORM AND INSTRUCTIONS IN APPENDIX II MUST BE USED FOR THIS
REPORT. THE ANNUAL REPORT MUST COVER FACILITY ACTIVITIES DURING THE
PREVIOUS CALENDAR YEAR AND MUST INCLUDE THE FOLLOWING INFORMATION:
(A) THE EPA IDENTIFICATION NUMBER, NAME, AND ADDRESS OF THE FACILITY;
(B) THE CALENDAR YEAR COVERED BY THE REPORT;
(C) FOR OFF-SITE FACILITIES, THE EPA IDENTIFICATION NUMBER OF EACH
HAZARDOUS WASTE GENERATOR FROM WHICH THE FACILITY RECEIVED A HAZARDOUS
WASTE DURING THE YEAR; FOR IMPORTED SHIPMENTS, THE REPORT MUST GIVE THE
NAME AND ADDRESS OF THE FOREIGN GENERATOR;
(D) A DESCRIPTION AND THE QUANTITY OF EACH HAZARDOUS WASTE THE
FACILITY RECEIVED DURING THE YEAR. FOR OFF-SITE FACILITIES, THIS
INFORMATION MUST BE LISTED BY EPA IDENTIFICATION NUMBER OF EACH
GENERATOR;
(E) THE METHOD OF TREATMENT, STORAGE, OR DISPOSAL FOR EACH HAZARDOUS
WASTE; AND
(F) THE CERTIFICATION SIGNED BY THE OWNER OR OPEATOR OF THE FACILITY
OR HIS AUTHORIZED REPRESENTATIVE.
IF A FACILITY ACCEPTS FOR TREATMENT, STORAGE, OR DISPOSAL ANY
HAZARDOUS WASTE FROM AN OFF-SITE SOURCE WITHOUT AN ACCOMPANYING
MANIFEST, OR WITHOUT AN ACCOMPANYING SHIPPING PAPER AS DESCRIBED IN
SECTION 263.20(E)(2) OF THIS CHAPTER, AND IF THE WASTE IS NOT EXCLUDED
FROM THE MANIFEST REQUIREMENT BY SECTION 261.5 OF THIS CHAPTER, THEN THE
OWNER OR OPERATOR MUST PREPARE AND SUBMIT A SINGLE COPY OF A REPORT TO
THE REGIONAL ADMINISTRATOR WITHIN 15 DAYS AFTER RECEIVING THE WASTE.
THE REPORT FORM AND INSTRUCTIONS IN APPENDIX II MUST BE USED FOR THIS
REPORT. THE REPORT MUST INCLUDE THE FOLLOWING INFORMATION:
(A) THE EPA IDENTIFICATION NUMBER, NAME, AND ADDRESS OF THE FACILITY;
(B) THE DATE THE FACILITY RECEIVED THE WASTE;
(C) THE EPA IDENTIFICATION NUMBER, NAME, AND ADDRESS OF THE GENERATOR
AND THE TRANSPORTER, IF AVAILABLE;
(D) A DESCRIPTION AND THE QUANTITY OF EACH UNMANIFESTED HAZARDOUS
WASTE AND FACILITY RECEIVED;
(E) THE METHOD OF TREATMENT, STORAGE, OR DISPOSAL FRO EACH HAZARDOUS
WASTE;
(F) THE CERTIFICATION SIGNED BY THE OWNER OR OPERATOR OF THE FACILITY
OR HIS AUTHORIZED REPRESENTATIVE; AND
(G) A BRIEF EXPLANATION OF WHY THE WASTE WAS UNMANIFESTED, IF KNOWN.
(COMMENT: SMALL QUANTITIES OF HAZARDOUS WASTE ARE EXCLUDED FROM
REGULAION UNDER THIS PART AND DO NOT REQUIRE A MANIFEST. WHERE A
FACILITY RECEIVES UNMANIFESTED HAZARDOUS WASTES, THE AGENCY SUGGESTS
THAT THE OWNER OR OPERATOR OBTAIN FROM EACH GENERATOR A CERTIFICATION
THAT THE WASTE QUALIFIES FOR EXCLUSION. OTHERWISE, THE AGENCY SUGGESTS
THAT THE OWNER OR OPERATOR FILE AN UNMANIFESTED WASTE REPORT FOR THE
HAZARDOUS WASTE MOVEMNT.)
IN ADDITION TO SUBMITTING THE ANNUAL REPORT AND UNMANIFESTED WASTE
REPORTS DESCRIBED IN SECTIONS 264.75 AND 246.76, THE OWNER OR OPERATOR
MUST ALSO REPORT TO THE REGIONAL ADMINISTRATOR RELEASES, FIRES, AND
EXPLOSIONS AS SPECIFIED IN SECTION 264.56(J).
THE RECORDKEEPING PROVISIONS OF SECTION 264.73 SPECIFY THAT AN OWNER
OR OPERATOR MUST KEEP A WRITTEN OPERATING RECORD AT HIS FACILITY. THIS
APPENDIX PROVIDES ADDITIONAL INSTRUCTIONS FOR KEEPING PORTIONS OF THE
OPERATING RECORD. SEE SECTION 264.73(B) FOR ADDITIONAL RECORDKEEPING
REQUIREMENTS.
THE FOLLOWING INFORMATION MUST BE RECORDED, AS IT BECOMES AVAILABLE,
AND MAINTAINED IN THE OPERATING RECORD UNTIL CLOSURE OF THE FACILITY IN
THE FOLLOWING MANNER:
RECORDS OF EACH HAZARDOUS WASTE RECEIVED, TREATED, STORED, OR
DISPOSED OF AT THE FACILITY WHICH INCLUDE THE FOLLOWING:
(1) A DESCRIPTION BY ITS COMMON NAME AND THE EPA HAZARDOUS WASTE
NUMBER(S) FROM PART 261 OF THIS CHAPTER WHICH APPLY TO THE WASTE. THE
WASTE DESCRIPTION ALSO MUST INCLUDE THE WASTE'S PHYSICAL FORM, I.E.,
LIQUID, SLUDGE, SOLID, OR CONTAINED GAS. IF THE WASTE IS NOT LISTED IN
PART 261, SUBPART D, OF THIS CHAPTER, THE DESCRIPTION ALSO MUST INCLUDE
THE PROCESS THAT PRODUCED IT (FOR EXAMPLE, SOLID FILTER CAKE FROM
PRODUCTION OF EPA HAZARDOUS WASTE NUMBER W051).
EACH HAZARDOUS WASTE LISTED IN PART 261, SUBPART D, OF THIS CHAPTER,
AND EACH HAZARDOUS WASTE CHARACTERISTIC DEFINED IN PART 261, SUBPART C,
OF THIS CHAPTER, HAS A FOUR-DIGIT EPA HAZARDOUS WASTE NUMBER ASSIGNED TO
IT. THIS NUMBER MUST BE USED FOR RECORDKEEPING AND REPORTING PURPOSES.
WHERE A HAZARDOUS WASTE CONTAINS MORE THAN ONE LISTED HAZARDOUS WASTE,
OR WHERE MORE THAN ONE HAZARDOUS WASTE CHARACTERISTIC APPLIES TO THE
WASTE, THE WASTE DESCRIPTION MUST INCLUDE ALL APPLICABLE EPA HAZARDOUS
WASTE NUMBERS.
(2) THE ESTIMATED OR MANIFEST-REPORTED WEIGHT, OR VOLUME AND DENSITY,
WHERE APPLICABLE, IN ONE OF THE UNITS OF MEASURE SPECIFIED IN TABLE 1;
(3) THE METHOD(S) (BY HANDLING CODE(S) AS SPECIFIED IN TABLE 2) AND
DATE(S) OF TREATMENT, STORAGE, OR DISPOSAL.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 075 OF 106
COSTLE D M ADMINISTRATOR
EPA
113439
REGULATION
TABLE OMITTED
TABLE 2 -- HANDLING CODES FOR TREATMENT, STORAGE, AND DISPOSAL
METHODS.
ENTER THE HANDLING CODE(S) LISTED BELOW THAT MOST CLOSELY REPRESENTS
THE TECHNIQUE(S) USED AT THE FACILITY TO TREAT, STORE, OR DISPOSE OF
EACH QUANTITY OF HAZARDOUS WASTE RECEIVED.
1. STORAGE S01 CONTAINER (BARREL, DRUM, ETC.)
S02 TANK
S03 WASTE PILE
S04 SURFACE IMPOUNDMENT
S05 OTHER (SPECIFY)
2. TREATMENT (A) THERMAL TREATMENT T06 LIQUID INJECTION INCINERATOR
T07 ROTARY KILN INCINERATOR T08 FLUIDIZED BED INCINERATOR T09 MULTIPLE
HEARTH INCINERATOR T10 INFRARED FURNACE INCINERATOR T11 MOLTEN SALT
DESTRUCTOR T12 PYROLYSIS T13 WET AIR OXIDATION T14 CALCINATION T15
MICROWAVE DISCHARGE T16 CEMENT KILN T17 LIME KILN T18 OTHER (SPECIFY)
(B) CHEMICAL TREATMENT T19 ABSORPTION MOUND T20 ABSORPTION FIELD T21
CHEMICAL FIXATION T22 CHEMICAL OXIDATION T23 CHEMICAL PRECIPITATION T24
CHEMICAL REDUCTION T25 CHLORINATION T26 CHLORINOLYSIS T27 CYANIDE
DESTRUCTION T28 DEGRADATION T29 DETOXIFICATION T30 ION EXCHANGE T31
NEUTRALIZATION T32 OZONATION T33 PHOTOLYSIS T34 OTHER (SPECIFY) (C)
PHYSICAL TREATMENT (1) SEPARATION OF COMPONENTS T35 CENTRIFUGATION T36
CLARIFICATION T37 COAGULATION T38 DECANTING T39 ENCAPSULTION T40
FILTRATION T41 FLOCCULATION T42 FLOTATION T43 FOAMING T44 SEDIMENTATION
T45 THICKENING T46 ULTRAFILTRATION T47 OTHER (SPECIFY) (2) REMOVAL OF
SPECIFIC COMPONENTS T48 ABSORPTION-MOLECULAR SIEVE T49 ACTIVATED CARBON
T50 BLENDING T51 CATALYSIS T52 CRYSTALLIZATION T53 DIALYSIS T54
DISTILLATION T55 ELECTRODIALYSIS T56 ELECTROLYSIS T57 EVAPORATION T58
HIGH GRADIENT MAGNETIC SEPARATION T59 LEACHING T60 LIQUID ION EXCHANGE
T61 LIQUID-LIQUID EXTRACTION T62 REVERSE OSMOSIS T63 SOLVENT RECOVERY
T64 STRIPPING T65 SAND FILTER T66 OTHER (SPECIFY) (D) BIOLOGICAL
TREATMENT T67 ACTIVATED SLUDGE T68 AEROBIC LAGOON T69 AEROBIC TANK T70
ANAEROBIC LAGOON T71 COMPOSTING T72 SEPTIC TANK T73 SPRAY IRRIGATION T74
THICKENING FILTER T75 TRICKING FILTER T76 WASTE STABILIZATION POND T77
OTHER (SPECIFY) T78-79 (RESERVED)
3. DISPOSAL D80 UNDERGROUND INJECTION D81 LANDFILL D82 LAND
TREATMENT D83 OCEAN DISPOSAL D84 SURFACE IMPOUNDMENT (TO BE CLOSED AS A
LANDFILL) D85 OTHER (SPECIFY)
BILLING CODE 6560-01-M.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 076 OF 106
COSTLE D M ADMINISTRATOR
EPA
113440
REGULATION
U.S. ENVIRONMENTAL PROTECTION AGENCY HAZARDOUS WASTE REPORT
BLANK FORM OMITTED.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 077 OF 106
COSTLE D M ADMINISTRATOR
EPA
113441
REGULATION
U.S. ENVIRONMENTAL PROTECTION AGENCY FACILITY REPORT -- PARTS B & C
(COLLECTED UNDER THE AUTHORITY OF SECTION 3004 OF RCRA)
BLANK FORM OMITTED.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 078 OF 106
COSTLE D M ADMINISTRATOR
EPA
113442
REGULATION
IMPORTANT: READ ALL INSTRUCTIONS BEFORE COMPLETING THIS FORM.
FOR GENERATORS WHO SHIP THEIR WASTE OFF-SITE TO FACILITIES WHICH THEY
DO NOT OWN OR OPERATE; FILL IN THE REPORTING YEAR FOR THIS REPORT
(E.G., 1982).
NOTE. -- GENERATORS WHO SHIP HAZARDOUS WASTE OFF-SITE TO A FACILITY
WHICH THEY OWN OR OPERATE MUST COMPLETE THE FACILITY (PART B) REPORT
INSTEAD OF THE PART A REPORT.
FOR OWNERS OR OPERATORS OF ON-SITE OF OFF-SITE FACILITIES THAT TREAT,
STORE, OR DISPOSE OF HAZARDOUS WASTE; FILL IN THE REPORTING YEAR FOR
THIS REPORT (E.G., 1982).
FOR FACILITY OWNERS OR OPERATORS WHO ACCEPT FOR TREATMENT, STORAGE,
OR DISPOSAL ANY HAZARDOUS WASTE FROM AN OFF-SITE SOURCE WITHOUT AN
ACCOMPANYING MANIFEST; FILL IN THE DATE THE WASTE WAS RECEIVED AT THE
FACILITY (E.G. 04-12-1982).
SECTION II. THRU SECTION IV. -- INSTALLATION I.D. NUMBER, NAME OF
INSTALLATION, AND INSTALLATION MAILING ADDRESS
IF YOU RECEIVED A PREPRINTED LABLE FROM EPA, ATTACH IT IN THE SPACE
PROVIDED AND LEAV SECTIONS II THROU IV BLANK. IF THERE IS AN ERROR OR
OMISSION ON THE LABEL, CROSS OUT THE INCORRECT INFORMATION AND FILL IN
THE APPROPRIATE ITEM(S). IF YOU DID NOT RECEIVE A PREPRINTED LABEL,
COMPLETE SECTION II THROUGH SECTION IV.
SECTION V. -- LOCATION OF INSTALLATION
IF YOUR INSTALLATION LOCATION ADDRESS IS DIFFERENT THAN THE MAILING
ADDRESS, ENTER THE LOCATION ADDRESS OF YOUR INSTALLATION.
SECTION VI. -- INSTALLATION CONTACT
ENTER THE NAME (LAST AND FIRST) AND TELEPHONE NUMBER OF THE PERSON
WHOM MAY BE CONTACTED REGARDING INFORMATION CONTAINED IN THIS REPORT.
SECTION VII. -- TRANSPORTATION SERVICES USED (FOR PART A REPORTS
ONLY)
LIST THE EPA IDENTIFICATION NUMBER FOR EACH TRANSPORTER WHOSE
SERVICES YOU USED DURING THE REPORTING YEAR.
SECTION VIII. -- COST ESTIMATES FOR FACILITIES (FOR PART B REPORTS
ONLY)
A. ENTER THE MOST RECENT COST ESTIMATE FOR FACILITY CLOSURE IN
DOLLARS. SEE SUBPART H OF 40 CFR PART 264 OR 265 FOR MORE DETAIL.
B. FOR DISPOSAL FACILITIES ONLY, ENTER THE MOST RECENT COST ESTIMATE
FOR POST CLOSURE MONITORING AND MAINTENANCE. SEE SUBPART H OF 40 CFR
PART 264 OR 265 FOR MORE DETAIL.
SECTION IX. -- CERTIFICATION
THE GENERATOR OR HIS AUTHORIZED REPRESENTATIVE (PART A REPORTS) OF
THE OWNER OR OPERATOR OF THE FACILITY OR HIS AUTHORIZED REPRESENTATIVE
(PARTS B AND C REPORTS) MUST SIGN AND DATE THE CERTIFICATION WHERE
INDICATED. THE PRINTED OR TYPED NAME OF THE PERSON SIGNING THE REPORT
MUST ALSO BE INCLUDED WHERE INDICATED.
NOTE. -- SINCE MORE THAN ONE PAGE IS REQUIRED FOR EACH REPORT, ENTER
THE PAGE NUMBER OF EACH SHEET IN THE LOWER RIGHT CORNER AS WELL AS THE
TOTAL NUMBER OF PAGES.
FACILITY ANNUAL REPORT FOR OWNERS OR OPERATORS OF ON-SITE OR OFF-SITE
FACILITIES THAT TREAT, STORE, OR DISPOSE OF HAZARDOUS WASTE.
NOTE. -- GENERATORS WHO SHIP HAZARDOUS WASTE OFF-SITE TO A FACILITY
THEY OWN OR OPERATE MUST COMPLETE THIS PART B REPORT INSTEAD OF THE
GENERATOR (PART A) ANNUAL REPORT.
COMPLETING THIS FORM.
SECTION XVI. -- TYPE OF REPORT
PUT AN "X" IN THE BOX MARKED PART B.
SECTION XVII. -- FACILITY'S EPA IDENTIFICATION NUMBER
ENTER THE EPA IDENTIFICATION NUMBER FOR YOUR FACILITY.
FIGURE OMITTED
SECTION XVIII. -- GENERATOR'S EPA IDENTIFICATION NUMBER
ENTER THE EPA IDENTIFICATION NUMBER OF THE GENERATOR OF THE WASTE
DESCRIBED UNDER SECTION XXI WHICH WAS RECEIVED BY YOUR FACILITY DURING
THE REPORTING YEAR. A SEPARATE SHEET MUST BE USED FOR EACH GENERATOR.
IF THE WASTES CAME FROM A FOREIGN GENERATOR, ENTER THE EPA
IDENTIFICATION NUMBER OF THE IMPORTER IN THIS SECTION AND ENTER THE NAME
AND ADDRESS OF THE FOREIGN GENERATOR IN SECTION XXII. COMMENTS. IF THE
WASTE WAS GENERATED AND TREATED, STORED, OR DISPOSED OF AT THE SAME
INSTALLATION, LEAVE THIS SECTION BLANK.
SECTION XIX. -- GENERATOR'S NAME
ENTER THE NAME OF THE GENERATOR CORRESPONDING TO THE GENERATOR'S EPA
IDENTIFICATION NUMBER IN SECTION XVIII.
IF THE WASTE WAS GENERATED AND TREATED, STORED, OR DISPOSED OF AT
THE SAME INSTALLATION, ENTER "ON-SITE".
IF THE WASTE CAME FROM A FOREIGN GENERATOR, ENTER THE NAME OF THE
IMPORTER CORRESPONDING TO THE EPA IDENTIFICATION NUMBER IN SECTION
XVIII.
SECTION XX. -- GENERATOR'S ADDRESS
ENTER THE ADDRESS OF THE GENERATOR CORRESPONDING TO THE GENERATOR'S
EPA IDENTIFICATION NUMBER IN SECTION XVIII. IF THE WASTE WAS GENERATED
AND TREATED, STORED OR DISPOSED OF AT THE SAME INSTALLATION, LEAVE THIS
SECTION BLANK. IF THE WASTE CAME FROM A FOREIGN GENERATOR, ENTER THE
ADDRESS OF THE IMPORTER CORRESPONDING TO THE EPA IDENTIFICATION NUMBER
IN SECTION XVIII.
SECTION XXI. -- WASTE IDENTIFICATION
ALL INFORMATION IN THIS SECTION MUST BE ENTERED BY LINE NUMBER. A
SEPARATE LINE ENTRY IS REQUIRED FOR EACH DIFFERENT WASTE OR MIXTURE OF
WASTES THAT YOUR FACILITY RECEIVED DURING THE REPORTING YEAR. THE
HANDLING CODE APPLICABLE TO THAT WASTE AT THE END OF THE REPORTING YEAR
SHOULD BE REPORTED. IF A DIFFERENT HANDLING CODE APPLIES TO PORTIONS OF
THE SAME WASTE, (E.G., PART OF THE WASTE IS STORED WHILE THE REMAINDER
WAS "CHEMICALLY FIXED" DURING THE YEAR), USE A SEPARATE LINE ENTRY FOR
EACH PORTION.
FIGURE OMITTED
SECTION XXI-A. -- DESCRIPTION OF WASTE
FOR HAZARDOUS WASTES THAT ARE LISTED UNDER 40 CFR PART 261, SUBPART
D, ENTER THE EPA LISTED NAME, ABBREVIATED IF NECESSARY. WHERE MIXTURES
OF LISTED WASTES WERE RECEIVED, ENTER THE DESCRIPTION WHICH YOU BELIEVE
BEST DESCRIBES THE WASTE.
FOR UNLISTED HAZARDOUS WASTE IDENTIFIED UNDER 40 CFR PART 261,
SUBPART C, ENTER THE DESCRIPTION WHICH YOU BELIEVE BEST DESCRIBES THE
WASTE. INCLUDE THE SPECIFIC MANUFACTURING OR OTHER PROCESS GENERATING
THE WASTE (E.G., GREEN SLUDGE FROM WIDGET MANUFACTURING) AND IF KNOWN,
THE CHEMICAL OR GENERIC CHEMICAL NAME OF THE WASTE.
SECTION XXI-B. -- EPA HAZARDOUS WASTE NUMBER
FOR LISTED WASTE, ENTER THE FOUR DIGIT EPA HAZARDOUS WASTE NUMBER
FROM 40 CFR PART 261, SUBPART D, WHICH IDENTIFIES THE WASTE.
FOR A MIXTURE OF MORE THAN ONE LISTED WASTE, ENTER EACH OF THE
APPLICABLE EPA HAZARDOUS WASTE NUMBERS.
FOUR SPACES ARE PROVIDED. IF MORE SPACE IS NEEDED CONTINUE ON THE
NEXT LINE(S) AND LEAVE ALL OTHER INFORMATION ON THAT LINE BLANK.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 079 OF 106
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EPA
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REGULATION
FIGURE OMITTED.
FOR UNLISTED HAZARDOUS WASTES, ENTER THE EPA HAZARDOUS WASTE NUMBERS
FROM 40 CFR PART 261, SUBPART C, APPLICABLE TO THE WASTE. IF MORE THAN
FOUR SPACES ARE REQUIRED, FOLLOW THE PROCEDURE DESCRIBED ABOVE.
SECTION XXI-C. -- HANDLING CODE
ENTER ONE EPA HANDLING CODE FOR EACH WASTE LINE ENTRY. WHERE SEVERAL
HANDLING STEPS HAVE OCCURRED DURING THE YEAR, REPORT ONLY THE HANDLING
CODE REPRESENTING THE WASTE'S STATUS AT THE END OF THE REPORTING YEAR OR
ITS FINAL DISPOSITION. EPA HANDLING CODES ARE GIVEN IN APPENDIX I OF
THIS PART.
SECTION XXI-D. -- AMOUNT OF WASTE
ENTER THE TOTAL AMOUNT OF WASTE DESCRIBED ON THIS LINE WHICH YOU
RECEIVED DURING THIS REPORTING YEAR.
SECTION XXI-C. -- UNIT OF MEASURE
ENTER THE UNIT OF MEASURE CODE FOR THE QUANTITY OF WASTE DESCRIBED ON
THIS LINE. UNITS OF MEASURE WHICH MUST BE USED IN THIS REPORT AND THE
APPROPRIATE CODES ARE:
FIGURE OMITTED
UINTS OF VOLUME MAY NOT BE USED FOR REPORTING BUT MUST BE CONVERTED
INTO ONE OF THE ABOVE UNITS OF WEIGHT, TAKING INTO ACCOUNT THE
APPROPRIATE DENSITY OR SPECIFIC GRAVITY OF THE WASTE.
SECTION XXII. -- COMMENTS
THIS SPACE MAY BE USED TO EXPLAIN OR CLARIFY ANY ENTRY. IF USED,
ENTER A CROSS-REFERENCE TO THE APPROPRIATE SECTION NUMBER.
NOTE. -- SINCE MORE THAN ONE PAGE IS REQUIRED FOR EACH REPORT, ENTER
THE PAGE NUMBER OF EACH SHEET IN THE LOWER RIGHT HAND CORNER AS WELL AS
THE TOTAL NUMBER OF PAGES.
WHERE REQUIRED BY 40 CFR 264 OR 265, SUBPARTS F OR R, ATTACH
GROUND-WATER MONITORING DATA TO THIS REPORT.
UNMANIFESTED WASTE REPORT FOR FACILITY OWNERS OR OPERATORS WHO ACCEPT
FOR TREATMENT, STORAGE, OR DISPOSAL ANY HAZARDOUS WASTE FROM AN OFF-SITE
SOURCE WITHOUT AN ACCOMPANYING MANIFEST.
COMPLETING THIS FORM
FOR THE UNMANIFESTED WASTE REPORT, EPA FORMS 8700-13 AND 8700-13B
MUST BE FILLED OUT ACCORDING TO THE DIRECTIONS FOR THE PART-B FACILITY
ANNUAL REPORT EXCEPT THAT: (1) BLOCKS FOR WHICH INFORMATION IS NOT
AVAILABLE TO THE OWNER OR OPERATOR OF THE REPORTING FACILITY MAY BE
MARKED "UNKNOWN," AND (2) THE FOLLOWING SPECIAL INSTRUCTIONS APPLY:
SECTION VIII. -- COST ESTIMATES FOR FACILITIES
DO NOT ENTER CLOSURE OR POST-CLOSURE COST ESTIMATES.
SECTION XVI. -- TYPE OF REPORT
PUT AN "X" IN THE BOX MARKED PART C.
SECTION XXI-A. -- DESCRIPTION OF WASTE
USE AS MANY LINE NUMBERS AS ARE NEEDED TO DESCRIBE THE WASTE.
SECTION XXI-C. -- HANDLING CODE
ENTER THE HANDLING CODE WHICH DESCRIBES THE STATUS OF THE WASTE ON
THE DATE THE REPORT IS FILED.
SECTION XXI-D. -- AMOUNT OF WASTE
ENTER THE AMOUNT OF WASTE RECEIVED, RATHER THAN A TOTAL ANNUAL
AGGREGATE.
SECTION XXII. -- COMMENTS
A. ENTER THE EPA IDENTIFICATION NUMBER, NAME, AND ADDRESS OF THE
TRANSPORTER, IF KNOWN. IF THE TRANSPORTER IS NOT KNOWN TO YOU, ENTER
THE NAME AND CHAUFFEUR LICENSE NUMBER OF THE DRIVER AND THE STATE AND
LICENSE NUMBER OF THE TRANSPORTING VEHICLE WHICH PRESENTED THE WASTE TO
YOUR FACILITY, IF KNOWN.
B. ENTER AN EXPLANATION OF HOW THE WASTE MOVEMENT WAS PRESENTED TO
YOUR FACILITY; WHY YOU BELIEVE THE WASTE IS HAZARDOUS; AND HOW YOUR
FACILITY PLANS TO MANAGE THE WASTES. CONTINUE ON A SEPARATE BLANK SHEET
OF PAPER IF ADDITIONAL SPACE IS NEEDED.
DO NOT ATTACH MONITORING DATA.
SEC.
265.1 PURPOSE, SCOPE, AND APPLICABILITY.
265.2-265.3 (RESERVED)
265.4 IMMINENT HAZARD ACTION.
265.5-265.9 (RESERVED)
265.10 APPLICABILITY.
265.11 IDENTIFICATION NUMBER.
265.12 REQUIRED NOTICES.
265.13 GENERAL WASTE ANALYSIS.
265.14 SECURITY.
SEC.
265.15 GENERAL INSPECTION REQUIREMENTS.
265.16 PERSONNEL TRAINING.
265.17 GENERAL REQUIREMENTS FOR IGNITABLE, REACTIVE, OR INCOMPATIBLE
WASTES.
265.18-265.29 (RESERVED)
265.30 APPLICABILITY.
265.31 MAINTENANCE AND OPERATION OF FACILITY.
265.32 REQUIRED EQUIPMENT.
265.33 TESTING AND MAINTENANCE OF EQUIPMENT.
265.34 ACCESS TO COMMUNICATIONS OR ALARM SYSTEM.
265.35 REQUIRED AISLE SPACE.
265.36 (RESERVED)
265.37 ARRANGEMENTS WITH LOCAL AUTHORITIES.
265.38-265.49 (RESERVED)
265.50 APPLICABILITY.
265.51 PURPOSE AND IMPLEMENTATION OF CONTINGENCY PLAN.
265.52 CONTENT OF CONTINGENCY PLAN.
265.53 COPIES OF CONTINGENCY PLAN.
265.54 AMENDMENT OF CONTINGENCY PLAN.
265.55 EMERGENCY COORDINATOR.
265.56 EMERGENCY PROCEDURES.
265.57-265.69 (RESERVED)
265.70 APPLICABILITY.
265.71 USE OF MANIFEST SYSTEM.
265.72 MANIFEST DISCREPANCIES.
265.73 OPERATING RECORD.
265.74 AVAILABILITY, RETENTION, AND DISPOSITION OF RECORDS.
265.75 ANNUAL REPORT.
265.76 UNMANIFESTED WASTE REPORT.
265.77 ADDITIONAL REPORTS.
265.78-265.89 (RESERVED)
265.90 APPLICABILITY.
265.91 GROUND-WATER MONITORING SYSTEM.
265.92 SAMPLING AND ANALYSIS.
265.93 PREPARATION, EVALUATION, AND RESPONSE.
265.94 RECORDKEEPING AND REPORTING.
265.95-265.109 (RESERVED)
265.110 APPLICABILITY.
265.111 CLOSURE PERFORMANCE STANDARD.
265.112 CLOSURE PLAN; AMENDMENT OF PLAN.
265.113 TIME ALLOWED FOR CLOSURE.
265.114 DISPOSAL OR DECONTAMINATION OF EQUIPMENT.
265.115 CERTIFICATION OF CLOSURE.
265.116 (RESERVED)
265.117 POST-CLOSURE CARE AND USE OF PROPERTY; PERIOD OF CARE.
265.118 POST-CLOSURE PLAN; AMENDMENT OF PLAN.
265.119 NOTICE TO LOCAL LAND AUTHORITY.
265.120 NOTICE IN DEED TO PROPERTY.
265.121-265.139 (RESERVED).
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 080 OF 106
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EPA
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REGULATION
SEC.
265.140 APPLICABILITY.
265.141 (RESERVED)
265.142 COST ESTIMATE FOR FACILITY CLOSURE.
265.143 (RESERVED)
265.144 COST ESTIMATE FOR POST-CLOSURE MONITORING AND MAINTENANCE.
265.145-265.169 (RESERVED)
265.170 APPLICABILITY.
265.171 CONDITION OF CONTAINERS.
265.172 COMPATIBILITY OF WASTE WITH CONTAINER.
265.173 MANAGEMENT OF CONTAINERS.
265.174 INSPECTIONS.
265.175 (RESERVED)
265.176 SPECIAL REQUIREMENTS FOR IGNITABLE OR REACTIVE WASTE.
265.177 SPECIAL REQUIREMENTS FOR INCOMPATIBLE WASTES.
265.178-265.189 (RESERVED)
265.190 APPLICABILITY.
265.191 (RESERVED)
265.192 GENERAL OPERATING REQUIREMENTS.
265.193 WASTE ANALYSIS AND TRIAL TESTS.
265.194 INSPECTIONS.
265.195-265.196 (RESERVED)
265.197 CLOSURE.
265.198 SPECIAL REQUIREMENTS FOR IGNITABLE OR REACTIVE WASTE.
265.199 SPECIAL REQUIREMENTS FOR INCOMPATIBLE WASTES.
265.200-265.219 (RESERVED)
265.220 APPLICABILITY.
265.221 (RESERVED)
265.222 GENERAL OPERATING REQUIREMENTS.
265.223 CONTAINMENT SYSTEM.
265.224 (RESERVED)
265.225 WASTE ANALYSIS AND TRIAL TESTS.
265.226 INSPECTIONS.
265.227 (RESERVED)
265.228 CLOSURE AND POST-CLOSURE.
265.229 SPECIAL REQUIREMENTS FOR IGNITABLE OR REACTIVE WASTE.
265.230 SPECIAL REQUIREMENTS FOR INCOMPATIBLE WASTES.
265.231-265.249 (RESERVED)
265.250 APPLICABILITY.
265.251 PROTECTION FROM WIND.
265.252 WASTE ANALYSIS.
265.253 CONTAINMENT.
265.254-265.255 (RESERVED)
265.256 SPECIAL REQUIREMENTS FOR IGNITABLE OR REACTIVE WASTES.
265.257 SPECIAL REQUIREMENTS FOR INCOMPATIBLE WASTES.
265.258-265.269 (RESERVED)
265.270 APPLICABILITY.
265.271 (RESERVED)
265.272 GENERAL OPERATING REQUIREMENTS.
265.273 WASTE ANALYSIS.
265.275-265.275 (RESERVED)
265.276 FOOD CHAIN CROPS.
265.277 (RESERVED)
265.278 UNSATURATED ZONE (ZONE OF AERATION) MONITORING.
SEC.
265.279 RECORDKEEPING.
265.280 CLOSURE AND POST-CLOSURE.
265.281 SPECIAL REQUIREMENTS FOR IGNITABLE OR REACTIVE WASTE.
265.282 SPECIAL REQUIREMENTS FOR INCOMPATIBLE WASTES.
265.283-265.299 (RESERVED)
265.300 APPLICABILITY.
265.301 (RESERVED)
265.302 GENERAL OPERATING REQUIREMENTS.
265.303-265.308 (RESERVED)
265.309 SURVEYING AND RECORDKEEPING.
265.310 CLOSURE AND POST-CLOSURE.
265.311 (RESERVED)
265.312 SPECIAL REQUIREMENTS FOR IGNITABLE OR REACTIVE WASTE.
265.313 SPECIAL REQUIREMENTS FOR INCOMPATIBLE WASTES.
265.314 SPECIAL REQUIREMENTS FOR LIQUID WASTE.
265.315 SPECIAL REQUIREMENTS FOR CONTAINERS.
265.316-265.339 (RESERVED)
265.340 APPLICABILITY.
265.341-265.342 (RESERVED)
265.343 GENERAL OPERATING REQUIREMENTS.
265.344 (RESERVED)
265.345 WASTE ANALYSIS.
265.346 (RESERVED)
265.347 MONITORING AND INSPECTIONS.
265.348-265.350 (RESERVED)
265.351 CLOSURE.
265.352-265.369 (RESERVED)
265.370 APPLICABILITY.
265.371-265.372 (RESERVED)
265.373 GENERAL OPERATING REQUIREMENTS.
265.374 (RESERVED)
265.375 WASTE ANALYSIS.
265.376 (RESERVED)
265.377 MONITORING AND INSPECTIONS.
265.378-265.380 (RESERVED)
265L381 CLOSURE.
265.382 OPEN BURNING; WASTE EXPLOSIVES.
265.383-265.399 (RESERVED)
265.400 APPLICABILITY.
265.401 GENERAL OPERATING REQUIREMENTS.
265.402 WASTE ANALYSIS AND TRIAL TESTS.
265.403 INSPECTIONS.
265.404 CLOSURE.
265.405 SPECIAL REQUIREMENTS FOR IGNITABLE OR REACTIVE WASTE.
265.406 SPECIAL REQUIREMENTS FOR INCOMPATIBLE WASTES.
265.407-265.429 (RESERVED)
265.430 APPLICABILITY.
265.431-265.999 (RESERVED)
APPENDIX I -- RECORDKEEPING INSTRUCTIONS.
APPENDIX II -- EPA REPORT FORM AND INSTRUCTIONS.
APPENDIX III -- EPA INTERIM PRIMARY DRINKING WATER STANDARDS.
APPENDIX IV -- TESTS FOR SIGNIFICANCE.
APPENDIX V -- EXAMPLES OF POTENTIALLY INCOMPATIBLE WASTE.
AUTHORITY: SECS. 1006, 2002(A), AND 3004 OF THE SOLID WASTE DISPOSAL
ACT, AS AMENDED BY THE RESOURCE CONSERVATION AND RECOVERY ACT OF 1976,
AS AMENDED (42 U.S.C 6905, 6912(A), AND 6924).
(A) THE PURPOSE OF THIS PART IS TO ESTABLISH MINIMUM NATIONAL
STANDARDS WHICH DEFINE THE ACCEPTABLE MANAGEMENT OF HAZARDOUS WASTE
DURING THE PERIOD OF INTERIM STATUS.
(B) THE STANDARDS IN THIS PART APPLY TO OWNERS AND OPERATORS OF
FACILITIES WHICH TREAT, STORE, OR DISPOSE OF HAZARDOUS WASTE WHO HAVE
FULLY COMPLIED WITH THE REQUIREMENTS FOR INTERIM STATUS UNDER SECTION
3005(E) OF RCRA AND SECTION 122.22 OF THIS CHAPTER, UNTIL FINAL
ADMINISTRATIVE DISPOSITION OF THEIR PERMIT APPLICATION IS MADE. THESE
STANDARDS APPLY TO ALL TREATMENT, STORAGE, OR DISPOSAL OF HAZARDOUS
WASTE AT THESE FACILITIES AFTER THE EFFECTIVE DATE OF THESE REGULATIONS,
EXCEPT AS SPECIFICALLY PROVIDED OTHERWISE IN THIS PART OF PART 261 OF
THIS CHAPTER.
(COMMENT: AS STATED IN SECTION 3005(A) OF RCRA, AFTER THE EFFECTIVE
DATE OF REGULATIONS UNDER THAT SECTION, I.E., PARTS 122 AND 124 OF THIS
CHAPTER, THE TREATMENT, STORAGE, OR DISPOSAL OF HAZARDOUS WASTE IS
PROHIBITED EXCEPT IN ACCORDANCE WITH A PERMIT. SECTION 3005(E) OF RCRA
PROVIDES FOR THE CONTINUED OPERATION OF AN EXISTING FACILITY WHICH MEETS
CERTAIN CONDITIONS UNTIL FINAL ADMINISTRATIVE DISPOSITION OF THE OWNER'S
AND OPERATOR'S PERMIT APPLICATION IS MADE.)
(C) THE REQUIREMENTS OF THIS PART DO NOT APPLY TO:
(1) A PERSON DISPOSING OF HAZARDOUS WASTE BY MEANS OF OCEAN DISPOSAL
SUBJECT TO A PERMIT ISSUED UNDER THE MARINE PROTECTION, RESEARCH, AND
SANCTUARIES ACT;
(COMMENT: THESE PART 265 REGULATIONS DO APPLY TO THE TREATMENT OR
STORAGE OF HAZARDOUS WASTE BEFORE IT IS LOADED ONTO AN OCEAN VESSEL FOR
INCINERATION OR DISPOSAL AT SEA, AS PROVIDED IN PARAGRAPH (B) OF THIS
SECTION.)
(2) A PERSON DISPOSING OF HAZARDOUS WASTE BY MEANS OF UNDERGROUND
INJECTION SUBJECT TO A PERMIT ISSUED UNDER AN UNDERGROUND INJECTION
CONTROL (UIC) PROGRAM APPROVED OR PROMULGATED UNDER THE SAFE DRINKING
WATER ACT;
(COMMENT: THESE PART 265 REGULATIONS DO APPLY TO THE ABOVEGROUND
TREATMENT OR STORAGE OF HAZARDOUS WASTE BEFORE IT IS INJECTED
UNDERGROUND. THESE PART 265 REGULATIONS ALSO APPLY TO THE DISPOSAL OF
HAZARDOUS WASTE BY MEANS OF UNDERGROUND INJECTION, AS PROVIDED IN
PARAGRAPH (B) OF THIS SECTION, UNTIL FINAL ADMINISTRATIVE DISPOSITION OF
A PERSON'S PERMIT APPLICATION IS MADE UNDER RCRA OR UNDER AN APPROVED OR
PROMULGATED UIC PROGRAM).
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 081 OF 106
COSTLE D M ADMINISTRATOR
EPA
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REGULATION
(3) THE OWNER OR OPERATOR OF A POTW WHICH TREATS, STORES, OR DISPOSES
OF HAZARDOUS WASTE;
(COMMENT: THE OWNER OR OPERATOR OF A FACILITY UNDER PARAGRAPHS
(C)(1) THROUGH (C)(3) OF THIS SECTION IS SUBJECT TO THE REQUIREMENTS OF
PART 264 OF THIS CHAPTER TO THE EXTENT THEY ARE INCLUDED IN A PERMIT BY
RULE GRANTED TO SUCH A PERSON UNDER PART 122 OF THIS CHAPTER, OR ARE
REQUIRED BY SECTION 122.45 OF THIS CHAPTER.)
(4) A PERSON WHO TREATS, STORES, OR DISPOSES OF HAZARDOUS WASTE IN A
STATE WITH A RCRA HAZARDOUS WASTE PROGRAM AUTHORIZED UNDER SUBPARTS A
AND B, OR SUBPART F, OF PART 123 OF THIS CHAPTER, EXCEPT THAT THE
REQUIREMENTS OF THIS PART WILL CONTINUE TO APPLY AS STATED IN PARAGRAPH
(C)(2) OF THIS SECTION, IF THE AUTHORIZED STATE RCRA PROGRAM DOES NOT
COVER DISPOSAL OF HAZARDOUS WASTE BY MEANS OF UNDERGROUND INJECTION;
(5) THE OWNER OR OPERATOR OF A FACILITY PERMITTED, LICENSED, OR
REGISTERED BY A STATE TO MANAGE MUNICIPAL OR INDUSTRIAL SOLID WASTE, IF
THE ONLY HAZARDOUS WASTE THE FACILITY TREATS, STORES, OR DISPOSES OF IS
EXCLUDED FROM REGULATION UNDER THIS PART BY SECTION 261.5 OF THIS
CHAPTER;
(6) THE OWNER OR OPERATOR OF A FACILITY WHICH TREATS OR STORES
HAZARDOUS WASTE, WHICH TREATMENT OR STORAGE MEETS THE CRITERIA IN
SECTION 261.6(A) OF THIS CHAPTER, EXCEPT TO THE EXTENT THAT SECTION
261.6(B) OF THIS CHAPTER PROVIDES OTHERWISE;
(7) A GENERATOR ACCUMULATING WASTE ON-SITE IN COMPLIANCE WITH SECTION
262.34 OF THIS CHAPTER, EXCEPT TO THE EXTENT THE REQUIREMENTS ARE
INCLUDED IN SECTION 262.34 OF THIS CHAPTER;
(8) A FARMER DISPOSING OF WASTE PESTICIDES FROM HIS OWN USE IN
COMPLIANCE WITH SECTION 262.51 OF THIS CHAPTER; OR
(9) THE OWNER OR OPERATOR OF A TOTALLY ENCLOSED TREATMENT FACILITY,
AS DEFINED IN SECTION 260.10.
NOTWITHSTANDING ANY OTHER PROVISIONS OF THESE REGULATIONS,
ENFORCEMENT ACTIONS MAY BE BROUGHT PURSUANT TO SECTION 7003 OF RCRA.
THE REGULATIONS IN THIS SUBPART APPLY TO OWNERS AND OPERATORS OF ALL
HAZARDOUS WASTE FACILITIES, EXCEPT AS SECTION 265.1 PROVIDES OTHERWISE.
EVERY FACILITY OWNER OR OPERATOR MUST APPLY TO EPA FOR AN EPA
IDENTIFICATION NUMBER IN ACCORDANCE WITH THE EPA NOTIFICATION PROCEDURES
(45 FR 12746).
(A) THE OWNER OR OPERATOR OF A FACILITY THAT HAS ARRANGED TO RECEIVE
HAZARDOUS WASTE FROM A FOREIGN SOURCE MUST NOTIFY THE REGIONAL
ADMINISTRATOR IN WRITING AT LEAS FOUR WEEKS IN ADVANCE OF THE DATE OF
THE WASTE IS EXPECTED TO ARRIVE AT THE FACILITY. NOTICE OF SUBSEQUENT
SHIPMENTS OF THE SAME WASTE FROM THE SAME FOREIGN SOURCE IS NOT
REQUIRED.
(B) BEFORE TRANSFERRING OWNERSHIP OR OPERATION OF A FACILITY DURING
ITS OPERATING LIFE, OR OF A DISPOSAL FACILITY DURING THE POST-CLOSURE
CARE PERIOD, THE OWNER OR OPERATOR MUST NOTIFY THE NEW OWNER OR OPERATOR
IN WRITING OF THE REQUIREMENTS OF THIS PART AND PART 122 OF THIS
CHAPTER. (ALSO SEE SECTION 122.23(C) OF THIS CHAPTER.)
(COMMENT: AN OWNER'S OR OPERATOR'S FAILURE TO NOTIFY THE NEW OWNER
OR OPERATOR OF THE REQUIREMENTS OF THIS PART IN NO WAY RELIEVES THE NEW
OWNER OR OPERATOR OF HIS OBLIGATION TO COMPLY WITH ALL APPLICABLE
REQUIREMENTS.)
(A)(1) BEFORE AN OWNER OR OPERATOR TREATS, STORES, OR DISPOSES OF ANY
HAZARDOUS WASTE, HE MUST OBTAIN A DETAILED CHEMICAL AND PHYSICAL
ANALYSIS OF A REPRESENTATIVE SAMPLE OF THE WASTE. AT A MINIMUM, THIS
ANALYSIS MUST CONTAIN ALL THE INFORMATION WHICH MUST BE KNOWN TO TREAT,
STORE, OR DISPOSE OF THE WASTE IN ACCORDANCE WITH THE REQUIREMENTS OF
THIS PART.
(2) THE ANALYSIS MAY INCLUDE DATA DEVELOPED UNDER PART 261 OF THIS
CHAPTER, AND EXISTING PUBLISHED OR DOCUMENTED DATA ON THE HAZARDOUS
WASTE OR ON WASTE GENERATED FROM SIMILAR PROCESSES.
(COMMENT: FOR EXAMPLE, THE FACILITY'S RECORD OF ANALYSES PERFORMED
ON THE WASTE BEFORE THE EFFECTIVE DATE OF THESE REGULATIONS, OR STUDIES
CONDUCTED ON HAZARDOUS WASTE GENERATED FROM PROCESSES SIMILAR TO THAT
WHICH GENERATED THE WASTE TO BE MANAGED AT THE FACILITY, MAY BE INCLUDED
IN THE DATA BASE REQUIRED TO COMPLY WITH PARAGRAPH (A)(1) OF THIS
SECTION. THE OWNER OR OPERATOR OF AN OFF-SITE FACILITY MAY ARRANGE FOR
THE GENERATOR OF THE HAZARDOUS WASTE TO SUPPLY PART OR ALL OF THE
INFORMATION REQUIRED BY PARAGRAPH (A)(1) OF THIS SECTION. IF THE
GENERATOR DOES NOT SUPPLY THE INFORMATION, AND THE OWNER OR OPERATOR
CHOOSES TO ACCEPT A HAZARDOUS WASTE, THE OWNER OR OPERATOR IS
RESPONSIBLE FOR OBTAINING THE INFORMATION REQUIRED TO COMPLY WITH THIS
SECTION.)
(3) THE ANALYSIS MUST BE REPEATED AS NECESSARY TO ENSURE THAT IT IS
ACCURATE AND UP TO DATE. AT A MINIMUM, THE ANALYSIS MUST BE REPEATED:
(I) WHEN THE OWNER OR OPERATOR IS NOTIFIED, OR HAS REASON TO BELIEVE,
THAT THE PROCESS OR OPERATION GENERATING THE HAZARDOUS WASTE HAS
CHANGED; AND
(II) FOR OFF-SITE FACILITIES, WHEN THE RESULTS OF THE INSPECTION
REQUIRED IN PARAGRAPH (A)(4) OF THIS SECTION INDICATE THAT THE HAZARDOUS
WASTE RECEIVED AT THE FACILITY DOES NOT MATCH THE WASTE DESIGNATED ON
THE ACCOMPANYING MANIFEST OR SHIPPING PAPER.
(4) THE OWNER OR OPERATOR OF AN OFF-SITE FACILITY MUST INSPECT AND,
IF NECESSARY, ANALYZE EACH HAZARDOUS WASTE MOVEMENT RECEIVED AT THE
FACILITY TO DETERMINE WHETHER IT MATCHES THE IDENTITY OF THE WASTE
SPECIFIED ON THE ACCOMPANYING MANIFEST OR SHIPPING PAPER.
(B) THE OWNER OR OPERATOR MUST DEVELOP AND FOLLOW A WRITTEN WASTE
ANALYSIS PLAN WHICH DESCRIBES THE PROCEDURES WHICH HE WILL CARRY OUT TO
COMPLY WITH PARAGRAPH (A) OF THIS SECTION. HE MUST KEEP THIS PLAN AT
THE FACILITY. AT A MINIMUM, THE PLAN MUST SPECIFY:
(1) THE PARAMETERS FOR WHICH EACH HAZARDOUS WASTE WILL BE ANALYZED
AND THE RATIONALE FOR THE SELECTION OF THESE PARAMETERS (I.E., HOW
ANALYSIS FOR THESE PARAMETERS WILL PROVIDE SUFFICIENT INFORMATION WITH
PARAGRAPH (A) OF THIS SECTION);
(2) THE TEST METHODS WHICH WILL BE USED TO TEST FOR THESE PARAMETERS;
(3) THE SAMPLING METHOD WHICH WILL BE USED TO OBTAIN A REPRESENTATIVE
SAMPLE OF THE WASTE TO BE ANALYZED. A REPRESENTATIVE SAMPLE MAY BE
OBTAINED USING EITHER:
(I) ONE OF THE SAMPLING METHODS DESCRIBED IN APPENDIX I OF PART 261
OF THIS CHAPTER; OR
(II) AN EQUIVALENT SAMPLING METHOD.
(COMMENT: SEE SECTION 260.20(C) OF THIS CHAPTER FOR RELATED
DISCUSSION.)
(4) THE FREQUENCY WITH WHICH THE INITIAL ANALYSIS OF THE WASTE WILL
BE REVIEWED OR REPEATED TO ENSURE THAT THE ANALYSIS IS ACCURATE AND UP
TO DATE;
(5) FOR OFF-SITE FACILITIES, THE WASTE ANALYSES THAT HAZARDOUS WASTE
GENERATORS HAVE AGREED TO SUPPLY; AND
(6) WHERE APPLICABLE, THE METHODS WHICH WILL BE USED TO MEET THE
ADDITIONAL WASTE ANALYSIS REQUIREMENTS FOR SPECIFIC WASTE MANAGEMENT
METHODS AS SPECIFIED IN SECTIONS 265.193, 265.225, 265.252, 265.273,
265.345, 265.375, AND 265.402.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 082 OF 106
COSTLE D M ADMINISTRATOR
EPA
113446
REGULATION
(C) FOR OFF-SITE FACILITIES, THE WASTE ANALYSIS PLAN REQUIRED IN
PARAGRAPH (B) OF THIS SECTION MUST ALSO SPECIFY THE PROCEDURES WHICH
WILL BE USED TO INSPECT AND, IF NECESSARY, ANALYZE EACH MOVEMENT OF
HAZARDOUS WASTE RECEIVED AT THE FACILITY TO ENSURE THAT IT MATCHES THAT
IDENTITY OF THE WASTE DESIGNATED ON THE ACCOMPANYING MANIFEST OR
SHIPPING PAPER. AT A MINIMUM, THE PLAN MUST DESCRIBE:
(1) THE PROCEDURES WHICH WILL BE USED TO DETERMINE THE IDENTIDY OF
EACH MOVEMENT OF WASTE MANAGED AT THE FACILITY; AND
(2) THE SAMPLING METHOD WHICH WILL BE USED TO OBTAIN A REPRESENTATIVE
SAMPLE OF THE WASTE TO BE IDENTIFIED, IF THE IDENTIFICATION METHODS
INCLUDES SAMPLING.
(A) THE OWNER OR OPERATOR MUST PREVENT THE UNKNOWING ENTRY, AND
MINIMIZE THE POSSIBILITY FOR THE UNAUTHORIZED ENTRY, OF PERSONS OR
LIVESTOCK ONTO THE ACTIVE PORTION OF HIS FACILITY, UNLESS:
(1) PHYSICAL CONTACT WITH THE WASTE, STRUCTURES, OR EQUIPMENT WITH
THE ACTIVE PORTION OF THE FACILITY WILL NOT INJURE UNKNOWING OR
UNAUTHORIZED PERSONS OR LIVESTOCK WHICH MAY ENTER THE ACTIVE PORTION OF
A FACILITY, AND
(2) DISTURBANCE OF THE WASTE OR EQUIPMENT, BY THE UNKNOWING OR
UNAUTHROIZED ENTRY OF PERSONS OR LIVESTOCK ONTO THE ACTIVE PORTION OF A
FACILITY, WILL NOT CAUSE A VIOLATION OF THE REQUIREMENTS OF THIS PART.
(B) UNLESS EXEMPT UNDER PARAGRAPHS (A)(1) AND (A)(2) OF THIS SECTION,
A FACILITY MUST HAVE:
(1) A 24-HOUR SURVEILLANCE SYSTEM (E.G., TELEVISION MONITORING OR
SURVEILLANCE BY GUARDS OF FACILITY PERSONNEL) WHICH CONTINUOUSLY
MONITORS AND CONTROLS ENTRY ONTO THE ACTIVE PORTION OF THE FACILITY: OR
(2)(I) AN ARTIFICIAL OR NATURAL BARRIER (E.G., A FENCE IN GOOD REPAIR
OR A FENCE COMBINED WITH A CLIFF), WHICH COMPLETELY SURROUNDS THE ACTIVE
PORTION OF THE FACILITY; AND
(II) A MEANS TO CONTROL ENTRY, AT ALL TIMES, THROUGH THE GATES OR
OTHER ENTRANCES TO THE ACTIVE PORTION OF THE FACILITY (E.G., AN
ATTENDANT, TELEVISION MONITORS, LOCKED ENTRANCE, OR CONTROLLED ROADWAY
ACCESS TO THE FACILITY). (COMMENT: THE REQUIREMENTS OF PARAGRAPH (B)
OF THIS SECTION ARE SATISFIED IF THE FACILITY OR PLANT WITHIN WHICH THE
ACTIVE PORTION IS LOCATED ITSELF HAS A SURVEILLANCE SYSTEM, OR A BARRIER
AND A MEANS TO CONTROL ENTRY, WHICH COMPLIES WITH THE REQUIREMENTS OF
PARAGRAPH (B)(1) OR (B)(2) OF THIS SECTION.)
(C) UNLESS EXEMPT UNDER PARAGRAPHS (A)(1) AND (A)(2) OF THIS SECTION,
A SIGN WITH THE LEGEND, "DANGER - UNAUTHORIZED PERSONNEL KEEP OUT", MUST
BE POSTED AT EACH ENTRANCE TO THE ACTIVE PORTION OF A FACILITY, AND AT
OTHER LOCATIONS, IN SUFFICIENT NUMBERS TO BE SEEN FROM ANY APPROACH TO
THIS ACTIVE PORTION. THE LEGEND MUST BE WRITTEN IN ENGLISH AND IN ANY
OTHER LANGUAGE PREDOMINANT IN THE AREA SURROUNDING THE FACILITY (E.G.,
FACILITIES IN COUNTIES BORDERING THE CANADIAN PROVINCE OF QUEBEC MUST
POST SIGNS IN FRENCH; FACILITIES IN COUNTIES BORDERING MEXICO MUST POST
SIGNS IN SPANISH), AND MUST BE LEGIBLE FROM A DISTANCE OF AT LEAST 25
FEET. EXISTING SIGNS WITH A LEGEND OTHER THAN "DANGER- UNAUTHORIZED
PERSONNEL KEEP OUT" MAY BE USED IF THE LEGEND ON THE SIGN INDICATES THAT
ONLY AUTHORIZED PERSONNEL ARE ALLOWED TO ENTER THE ACTIVE PORTION, AND
THAT ENTRY ONTO THE ACTIVE PORTION CAN BE DANGEROUS. (COMMENTS: SEE
SECTION 265.117(B) FOR DISCUSSION OF SECURITY REQUIREMENTS AT DISPOSAL
FACILITIES DURING THE POST-CLOSURE PERIOD.)
(A) THE OWNER OR OPERATOR MUST INSPECT HIS FACILITY FOR MALFUNCTIONS
AND DETERIORATION, OPERATOR ERRORS, AND DISCHARGES WHICH MAY BE CAUSING
- OR MAY LEAD TO - (1) RELEASE OF HAZARDOUS WASTE CONSTITUENTS TO THE
ENVIRONMENT OR (2) A THREAT TO HUMAN HEALTH. THE OWNER OR OPERATOR MUST
CONDUCT THESE INSPECTIONS OFTEN ENOUGH TO IDENTIFY PROBLEMS IN TIME TO
CORRECT THEM BEFORE THEY HARM HUMAN HEALTH OR THE ENVIRONMENT.
(B)(1) THE OWNER OR OPERATOR MUST DEVELOP AND FOLLOW A WRITTEN
SCHEDULE FOR INSPECTING ALL MONITORING EQUIPMENT, SAFETY AND EMEMRGENCY
EQUIPMENT, SECURITY DEVICES, AND OPERATING AND STRUCTURAL EQUIPMENT
(SUCH AS DIKES AND SUMP PUMPS) THAT ARE IMPORTANT TO PREVENTING,
DETECTING, OR RESPONDING TO ENVIRONMENTAL OR HUMAN HEALTH HAZARDS.
(2) HE MUST KEEP THIS SCHEDULE AT THE FACILITY.
(3) THE SCHEDULE MUST IDENTIFY THE TYPES OF PROBLEMS (E.G.,
MALFUNCTIONS OR DETERIORATION) WHICH ARE TO BE LOOKED FOR DURING THE
INSPECTION (E.G., INOPERATIVE SUMP PUMP, LEAKING FITTING, ERODING DIKE,
ETC.)
(4) THE FREQUENCY OF INSPECTION MAY VARY FOR THE ITEMS ON THE
SCHEDULE. HOWEVER, IT SHOULD BE BASED ON THE RATE OF POSSIBLE
DETERIORATION OF THE EQUIPMENT AND THE PROBABILITY OF AN ENVIRONMENTAL
OR HUMAN HEALTH INCIDENT IF THE DETERIORATION OR MALFUNCTION OR ANY
OPERATOR ERROR GOES UNDETECTED BETWEEN INSPECTIONS. AREAS SUBJECT TO
SPILLS, SUCH AS LOADING AND UNLOADING AREAS, MUST BE INSPECTED DAILY
WHEN IN USE. AT A MINIMUM, THE INSPECTION SCHEDULE MUST INCLUDE THE
ITEMS AND FREQUENCIES CALLED FOR IN SECTIONS 265.174, 265.194, 265.226,
265.347, 265.377, AND 265.403.
(C) THE OWNER OR OPERATOR MUST REMEDY ANY DETERIORATION OR
MALFUNCTION OF EQUIPMENT OR STRUCTURES WHICH THE INSPECTION REVEALS ON A
SCHEDULE WHICH ENSURES THAT THE PROBLEM DOES NOT LEAD TO AN
ENVIRONMENTAL OR HUMAN HEALTH HAZARD. WHERE A HAZARD IS IMMINENT OR HAS
ALREADY OCCURRED, REMEDIAL ACTION MUST BE TAKEN IMMEDIATELY.
(D) THE OWNER OR OPERATOR MUST RECORD INSPECTIONS IN AN INSPECTION
LOG OR SUMMARY. HE MUST KEEP THESE RECORDS FOR AT LEAST THREE YEARS
FROM THE DATE OF INSPECTION. AT A MINIMUM THESE RECORDS MUST INCLUDE
THE DATE AND TIME OF THE INSPECTION, THE NAME OF THE INSPECTOR, A
NOTATION OF THE OBSERVATIONS MADE, AND THE DATE AND NATURE OF ANY
REPAIRS OR OTHER REMEDIAL ACTIONS.
(A)(1) FACILITY PERSONNEL MUST SUCCESSFULLY COMPLETE A PROGRAM OF
CLASSROOM INSTRUCTION OR ON-THE-JOB TRAINING THAT TEACHES THEM TO
PERFORM THEIR DUTIES IN A WAY THAT ENSURES THE FACILITY'S COMPLIANCE
WITH THE REQUIREMENTS OF THIS PART. THE OWNER OR OPERATOR MUST ENSURE
THAT THIS PROGRAM INCLUDES ALL THE ELEMENTS DESCRIBED IN THE DOCUMENT
REQUIRED UNDER PARAGRAPH (D)(3) OF THIS SECTION.
(2) THIS PROGRAM MUST BE DIRECTED BY A PERSON TRAINED IN HAZARDOUS
WASTE MANAGEMENT PROCEDURES, AND MUST INCLUDE INSTRUCTION WHICH TEACHES
FACILITY PERSONNEL HAZARDOUS WASTE MANAGEMENT PROCEDURES (INCLUDING
CONTINGENCY PLAN IMPLEMENTATION) RELEVANT TO THE POSITIONS IN WHICH THEY
ARE EMPLOYED.
(3) AT A MINIMUM, THE TRAINING PROGRAM MUST BE DESIGNED TO ENSURE
THAT FACILITY PERSONNEL ARE ABLE TO RESPOND EFFECTIVELY TO EMERGENCIES
BY FAMILIARIZING THEM WITH EMERGENCY PROCEDURES, EMERGENCY EQUIPMENT,
AND EMERGENCY SYSTEMS, INCLUDING WHERE APPLICABLE:
(I) PROCEDURES FOR USING, INSPECTING, REPAIRING, AND REPLACING
FACILITY EMERGENCY AND MONITORING EQUIPMENT;
(II) KEY PARAMETERS FOR AUTOMATIC WASTE FEED CUT-OFF SYSTEMS:
(III) COMMUNICATIONS OR ALARM SYSTEMS:
(IV) RESPONSE TO FIRES OR EXPLOSIONS:
(V) RESPONSE TO GROUND-WATER CONTAMINATION INCIDENTS; AND
(B) FACILITY PERSONNEL MUST SUCCESSFULY COMPLETE THE PROGRAM REQUIRED
IN PARAGRAPH (A) OF THIS SECTION WITHIN SIX MONTHS AFTER THE EFFECTIVE
DATE OF THESE REGULATIONS OR SIX MONTHS AFTER THE DATE OF THEIR
EMPLOYMENT OR ASSIGNMENT TO A FACILITY, OR TO A NEW POSITION AT A
FACILITY, WHICHEVER IS LATER. EMPLOYEES HIRED AFTER THE EFFECTIVE DATE
OF THESE REGULATIONS MUST NOT WORK IN UNSUPERVISED POSITIONS UNTIL THEY
HAVE COMPLETED THE TRAINING REQUIREMENTS OF PARAGRAPH (A) OF THIS
SECTION.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 083 OF 106
COSTLE D M ADMINISTRATOR
EPA
113447
REGULATION
(C) FACILITY PERSONNEL MUST TAKE PART IN AN ANNUAL REVIEW OF THE
INITIAL TRAINING REQUIRED IN PARAGRAPH (A) OF THIS SECTION.
(D) THE OWNER OR OPERATOR MUST MAINTAIN THE FOLLOWING DOCUMENTS AND
RECORDS AT THE FACILITY;
(1) THE JOB TITLE FOR EACH POSITION AT THE FACILITY RELATED TO
HAZARDOUS WASTE MANAGEMENT, AND THE NAME OF THE EMPLOYEE FILING EACH
JOB;
(2) A WRITTEN JOB DESCRIPTION FOR EACH POSITION LISTED UNDER
PARAGRAPH (D)(1) OF THIS SECTION. THIS DESCRIPTION MAY BE CONSISTENT IN
ITS DEGREE OF SPECIFICITY WITH DESCRIPTIONS FOR OTHER SIMILAR POSITIONS
IN THE SAME COMPANY LOCATION OR BARGAINING UNIT, BUT MUST INCLUDE THE
REQUISITE SKILL, EDUCATION, OR OTHER QUALIFICATIONS, AND DUTIES OF
FACILITY PERSONNEL ASSIGNED TO EACH POSITION;
(3) A WRITTEN DESCRIPTION OF THE TYPE AND AMOUNT OF BOTH INTRODUCTORY
AND CONTINUING TRAINING THAT WILL BE GIVEN TO EACH PERSON FILLING A
POSITION LISTED UNDER PARAGRAPH (D)(1) OF THIS SECTION;
(4) RECORDS THAT DOCUMENT THAT THE TRAINING OR JOB EXPERIENCE
REQUIRED UNDER PARAGRAPHS (A), (B), AND (C) OF THIS SECTION HAS BEEN
GIVEN TO, AND COMPLETED BY, FACILITY PERSONNEL.
(3) TRAINING RECORDS ON CURRENT PERSONNEL MUST BE KEPT UNTIL CLOSURE
OF THE FACILITY. TRAINING RECORDS ON FORMER EMPLOYEES MUST BE KEPT FOR
AT LEAST THREE YEARS FROM THE DATE THE EMPLOYEE LAST WORKED AT THE
FACILITY. PERSONNEL TRAINING RECORDS MAY ACCOMPANY PERSONNEL
TRANSFERRED WITHIN THE SAME COMPANY.
(A) THE OWNER OR OPERATOR MUST TAKE PRECAUTIONS TO PREVENT ACCIDENTAL
IGNITION OR REACTION OF IGNITABLE OR REACTIVE WASTE. THIS WASTE MUST BE
SEPARATED AND PROTECTED FROM SOURCES OF IGNITION TO: OPEN FLAMES,
SMOKING, CUTTING AND WELDING, HOT SURFACES, FRICTIONAL HEAT, SPARKS
(STATIC, ELECTRICAL, OR MECHANICAL), SPONTANEOUS IGNITION (E.G., FROM
HEAT-PRODUCING CHEMICAL REACTIONS), AND RADIANT HEAT. WHILE IGNITABLE
OR REACTIVE WASTE IS BEING HANDLED, THE OWNER OR OPERATOR MUST CONFINE
SMOKING AND OPEN FLAME TO SPECIALLY DESIGNED LOCATIONS. "NO SMOKING"
SIGNS MUST BE CONSPICUOUSLY PLACED WHEREVER THERE IS A HAZARD FROM
IGNITABLE OR REACTIVE WASTE.
(B) WHERE SPECIFICALLY REQUIRED BY OTHER SECTIONS OF THIS PART, THE
TREATMENT, STORAGE, OR DISPOSAL OF IGNITABLE OR REACTIVE WASTE, AND THE
MIXTURE OR COMMINGLING OF INCOMPATIBLE WASTES, OR INCOMPATIBLE WASTES
AND MATERIALS, MUST BE CONDUCTED SO THAT IT DOES NOT:
(1) GENERATE EXTREME HEAT OR PRESSURE, FIRE OR EXPLOSION, OR VIOLENT
REACTION;
(2) PRODUCE UNCONTROLLED TOXIC MISTS, FUMES, DUSTS, OR GASES IN
SUFFICIENT QUANTITIES TO THREATEN HUMAN HEALTH;
(3) PRODUCE UNCONTROLLED FLAMMABLE FUMES OR GASES IN SUFFICIENT
QUANTITIES TO POSE A RISK OF FIRE OR EXPLOSIONS;
(4) DAMAGE THE STRUCTURAL INTEGRITY OF THE DEVICE OR FACILITY
CONTAINING THE WASTE; OR
(5) THROUGH OTHER LIKE MEANS THREATEN HUMAN HEALTH OR THE
ENVIRONMENT.
THE REGULATIONS IN THIS SUBPART APPLY TO OWNERS AND OPERATORS OF ALL
HAZARDOUS WASTE FACILITIES, EXCEPT AS SECTION 265.1 PROVIDES OTHERWISE.
FACILITIES MUST BE MAINTAINED AND OPERATED TO MINIMIZE THE
POSSIBILITY OF A FIRE, EXPLOSION, OR ANY UNPLANNED SUDDEN OR NON-SUDDEN
RELEASE OF HAZARDOUS WASTE OR HAZARDOUS WASTE CONSTITUENTS TO AIR, SOIL,
OR SURFACE WATER WHICH COULD THREATEN HUMAN HEALTH OR THE ENVIRONMENT.
ALL FACILITIES MUST BE EQUIPPED WITH THE FOLLOWING, UNLESS NONE OF
THE HAZARDS POSED BY WASTE HANDLED AT THE FACILITY COULD REQUIRE A
PARTICULAR KIND OF EQUIPMENT SPECIFIED BELOW:
(A) AN INTERNAL COMMUNICATIONS OR ALARM SYSTEM CAPABLE OF PROVIDING
IMMEDIATE EMERGENCY INSTRUCTION (VOICE OR SIGNAL) TO FACILITY PERSONNEL;
(B) A DEVICE, SUCH AS A TELEPHONE (IMMEDIATELY AVAILABLE AT THE SCENE
OF OPERATIONS) OR A HAND-HELD TWO-WAY RADIO, CAPABLE OF SUMMONING
EMERGENCY ASSISTANCE FROM LOCAL POLICE DEPARTMENTS FIRE DEPARTMENTS, OR
STATE OR LOCAL EMERGENCY RESPONSE TEAMS;
(C) PORTABLE FIRE EXTINGUISHERS, FIRE CONTROL EQUIPMENT (INCLUDING
SPECIAL EXTINGUISHING EQUIPMENT, SUCH AS THAT USING FOAM, INERT GAS, OR
DRY CHEMICALS), SPILL CONTROL EQUIPMENT, AND DECONTAMINATION EQUIPMENT,
AND
(D) WATER AT ADEQUATE VOLUME AND PRESSURE TO SUPPLY WATER HOSE
STREAMS, OR FOAM PRODUCING EQUIPMENT, OR AUTOMATIC SPRINKLERS, OR WATER
SPRAY SYSTEMS.
ALL FACILITY COMMUNICATIONS OR ALARM SYSTEMS, FIRE PROTECTION
EQUIPMENT, SPILL CONTROL EQUIPMENT, AND DECONTAMINATION EQUIPMENT, WHERE
REQUIRED, MUST BE TESTED AND MAINTAINED AS NECESSARY TO ASSURE ITS
PROPER OPERATION IN TIMEOF EMERGENCY.
(A) WHENEVER HAZARDOUS WASTE IS BEING POURED, MIXED, SPREAD, OR
OTHERWISE HANDLED, ALL PERSONNEL INVOLVED IN THE OPERATION MUST HAVE
IMMEDIATE ACCESS TO AN INTERNAL ALARM OR EMERGENCY COMMUNICATION DEVICE,
EITHER DIRECTLY OR THROUGH VISUAL OR VOICE CONTACT WITH ANOTHER
EMPLOYEE, UNLESS SUCH A DEVICE IS NOT REQUIRED UNDER SECTION 265.32.
(B) IF THERE IS EVER JUST ONE EMPLOYEE ON THE PREMISES WHILE THE
FACILITY IS OPERATING, HE MUST HAVE IMMEDIATE ACCESS TO A DEVICE, SUCH
AS A TELEPHONE (IMMEDIATELY AVAILABLE AT THE SCENE OF OPERATION) OR A
HAND-HELD TWO-WAY RADIO, CAPABLE OF SUMMONING EXTERNAL EMERGENCY
ASSISTANCE, UNLESS SUCH A DEVICE IS NOT REQUIRED UNDER SECTION 265.32.
THE OWNER OR OPERATOR MUST MAINTAIN AISLE SPACE TO ALLOW THE
UNOBSTRUCTED MOVEMENT OF PERSONNEL, FIRE PROTECTION EQUIPMENT, SPILL
CONTROL EQUIPMENT, AND DECONTAMINATION EQUIPMENT TO ANY AREA OF FACILITY
OPERATION IN AN EMERGENCY, UNLESS AISLE SPACE IS NOT NEEDED FOR ANY OF
THESE PURPOSES.
(A) THE OWNER OR OPERATOR MUST ATTEMPT TO MAKE THE FOLLOWING
ARRANGEMENTS, AS APPROPRIATE FOR THE TYPE OF WASTE HANDLED AT HIS
FACILITY AND THE POTENTIAL NEED FOR THE SERVICES OF THESE ORGANIZATIONS;
(1) ARRANGEMENTS TO FAMILIARIZE POLICE, FIRE DEPARTMENTS, AND
EMERGENCY RESPONSE TEAMS WITH THE LAYOUT OF THE FACILITY, PROPERTIES OF
HAZARDOUS WASTE HANDLED AT THE FACILITY AND ASSOCIATED HAZARDS, PLACES
WHERE FACILITY PERSONNEL WOULD NORMALLY BE WORKING, ENTRANCES TO ROADS
INSIDE THE FACILITY, AND POSSIBLE EVACUATION ROUTES.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 084 OF 106
COSTLE D M ADMINISTRATOR
EPA
113448
REGULATION
(2) WHERE MORE THAN ONE POLICE AND FIRE DEPARTMENT MIGHT RESPOND TO
AN EMERGENCY, AGREEMENTS DESIGNATING PRIMARY EMERGENCY AUTHORITY TO A
SPECIFIC POLICE AND A SPECIFIC FIRE DEPARTMENT, AND AGREEMENTS WITH ANY
OTHERS TO PROVIDE SUPPORT TO THE PRIMARY EMERGENCY AUTHORITY;
(3) AGREEMENTS WITH STATE EMERGENCY RESPONSE TEAMS, EMERGENCY
RESPONSE CONTRACTORS, AND EQUIPMENT SUPPLIERS; AND
(4) ARRANGEMENTS TO FAMILIARIZE LOCAL HOSPITALS WITH THE PROPERTIES
OF HAZARDOUS WASTE HANDLED AT THE FACILITY AND THE TYPES OF INJURIES OR
ILLNESSES WHICH COULD RESULT FROM FIRES, EXPLOSIONS, OR RELEASES AT THE
FACILITY.
(D) WHERE STATE OR LOCAL AUTHORITIES DECLINE TO ENTER INTO SUCH
ARRANGEMENTS, THE OWNER OR OPERATOR MUST DOCUMENT THE REFUSAL IN THE
OPERATING RECORD.
THE REGULATIONS IN THIS SUBPART APPLY TO OWNERS AND OPERATORS OF ALL
HAZARDOUS WASTE FACILITIES, EXCEPT AS SECTION 265.1 PROVIDES OTHERWISE.
(A) EACH OWNER OR OPERATOR MUST HAVE A CONTINGENCY PLAN FOR HIS
FACILITY. THE CONTINGENCY PLAN MUST BE DESIGNED TO MINIMIZE HAZARDS TO
HUMAN HEALTH OR THE ENVIRONMENT FROM FIRES, EXPLOSIONS, OR ANY UNPLANNED
SUDDEN OR NON-SUDDEN RELEASE OF HAZARDOUS WASTE OR HAZARDOUS WASTE
CONSTITUENTS TO AIR, SOIL, OR SURFACE WATER.
(B) THE PROVISIONS OF THE PLAN MUST BE CARRIED OUT IMMEDIATELY
WHENEVER THERE IS A FIRE, EXPLOSION, OR RELEASE OF HAZARDOUS WASTE OR
HAZARDOUS WASTE CONSTITUENTS WHICH COULD THREATEN HUMAN HEALTH OR THE
ENVIRONMENT.
(A) THE CONTINGENCY PLAN MUST DESCRIBE THE ACTIONS FACILITY PERSONNEL
MUST TAKE TO COMPLY WITH SECTIONS 265.51 AND 265.56 IN RESPONSE TO
FIRES, EXPLOSIONS, OR ANY UNPLANNED SUDDEN OR NON-SUDDEN RELEASE OF
HAZARDOUS WASTE OR HAZARDOUS WASTE CONSTITUENTS TO AIR, SOIL, OR SURFACE
WATER AT THE FACILITY.
(B) IF THE OWNER OR OPERATOR HAS ALREADY PREPARED A SPILL PREVENTION,
CONTROL, AND COUNTERMEASURES (SPCC) PLAN IN ACCORDANCE WITH PART 112 OR
PART 151 OF THIS CHAPTER, OR SOME OTHER EMERGENCY OR CONTINGENCY PLAN,
HE NEED ONLY AMEND THAT PLAN TO INCORPORATE HAZARDOUS WASTE MANAGEMENT
PROVISIONS THAT ARE SUFFICIENT TO COMPLY WITH THE REQUIREMENTS OF THIS
PART.
(C) THE PLAN MUST DESCRIBE ARRANGEMENTS AGREED TO BY LOCAL POLICE
DEPARTMENTS, FIRE DEPARTMENTS, HOSPITALS, CONTRACTORS, AND STATE AND
LOCAL EMERGENCY RESPONSE TEAMS TO COORDINATE EMERGENCY SERVICES,
PURSUANT TO SECTION 265.37.
(D) THE PLAN MUST LIST NAMES, ADDRESSES, AND PHONE NUMBERS (OFFICE
AND HOME) OF ALL PERSONS QUALIFIED TO ACT AS EMERGENCY COORDINATOR (SEE
SECTION 265.55), AND THIS LIST MUST BE KEPT UP TO DATE. WHERE MORE THAN
ONE PERSON IS LISTED, ONE MUST BE NAMED AS PRIMARY EMERGENCY COORDINATOR
AND OTHERS MUST BE LISTED IN THE ORDER IN WHICH THEY WILL ASSUME
RESPONSIBILITY AS ALTERNATES.
(E) THE PLAN MUST INCLUDE A LIST OF ALL EMERGENCY EQUIPMENT AT THE
FACILITY (SUCH AS FIRE EXTINGUISHING SYSTEMS, SPILL CONTROL EQUIPMENT,
COMMUNICATIONS AND ALARM SYSTEMS (INTERNAL AND EXTERNAL), AND
DECONTAMINATION EQUIPMENT), WHERE THIS EQUIPMENT IS REQUIRED. THIS LIST
MUST BE KEPT UP TO DATE. IN ADDITION, THE PLAN MUST INCLUDE THE
LOCATION AND A PHYSICAL DESCRIPTION OF EACH ITEM ON THE LIST, AND A
BRIEF OUTLINE OF ITS CAPABILITIES.
(F) THE PLAN MUST INCLUDE AN EVACUATION PLAN FOR FACILITY PERSONNEL
WHERE THERE IS A POSSIBILITY THAT EVACUATION COULD BE NECESSARY. THIS
PLAN MUST DESCRIBE SIGNAL(S) TO BE USED TO BEGIN EVACUATION ROUTES (IN
CASES WHERE THE PRIMARY ROUTES COULD BE BLOCKED BY RELEASES OF HAZARDOUS
WASTE OR FIRES).
A COPY OF THE CONTINGENCY PLAN AND ALL REVISIONS TO THE PLAN MUST BE:
(A) MAINTAINED AT THE FACILITY; AND
(B) SUBMITTED TO ALL LOCAL POLICE DEPARTMENTS, FIRE DEPARTMENTS,
HOSPITALS, AND STATE AND LOCAL EMERGENCY RESPONSE TEAMS THAT MAY BE
CALLED UPON TO PROVIDE EMERGENCY SERVICES.
THE CONTINGENCY PLAN MUST BE REVIEWED, AND IMMEDIATELY AMENDED, IF
NECESSARY, WHENEVER:
(A) APPLICABLE REGULATIONS ARE REVISED;
(B) THE PLAN FAILS IN AN EMERGENCY;
(C) THE FACILITY CHANGES - IN ITS DESIGN, CONSTRUCTION, OPERATION,
MAINTENANCE, OR OTHER CIRCUMSTANCES - IN A WAY THAT MATERIALLY INCREASES
THE POTENTIAL FOR FIRES, EXPLOSIONS, OR RELEASES OF HAZARDOUS WASTE OR
HAZARDOUS WASTE CONSTITUENTS, OR CHANGES THE RESPONSE NECESSARY IN AN
EMERGENCY;
(D) THE LIST OF EMERGENCY COORDINATORS CHANGES; OR
(E) THE LIST OF EMERGENCY EQUIPMENT CHANGES.
AT ALL TIMES, THERE MUST BE AT LEAST ONE EMPLOYEE EITHER ON THE
FACILITY PREMISES OR ON CALL (I.E., AVAILABLE TO RESPOND TO AN EMERGENCY
BY REACHING THE FACILITY WITHIN A SHORT PERIOD OF TIME) WITH THE
RESPONSIBILITY FOR COORDINATING ALL EMERGENCY RESPONSE MEASURES. THIS
EMERGENCY COORDINATOR MUST BE THOROUGHLY FAMILIAR WITH ALL ASPECTS OF
THE FACILITY'S CONTINGENCY PLAN, ALL OPERATIONS AND ACTIVITIES AT THE
FACILITY, THE LOCATION AND CHARACTERISTICS OF WASTE HANDLED, THE
LOCATION OF ALL RECORDS WITHIN THE FACILITY, AND THE FACILITY LAYOUT.
IN ADDITION, THIS PERSON MUST HAVE THE AUTHORITY TO COMMIT THE RESOURCES
NEEDED TO CARRY OUT THE CONTINGENCY PLAN. (COMMENT: THE EMERGENCY
COORDINATOR'S RESPONSIBILITIES ARE MORE FULLY SPELLED OUT IN SECTION
265.56. APPLICABLE RESPONSIBILITIES FOR THE EMERGENCY COORDINATOR VARY,
DEPENDING ON FACTORS SUCH AS TYPE AND VARIETY OF WASTE(S) HANDLED BY THE
FACILITY, AND TYPE AND COMPLEXITY OF THE FACILITY.)
(A) WHENEVER THERE IS AN IMMINENT OR ACTUAL EMERGENCY SITUATION, THE
EMERGENCY COORDINATOR (OR HIS DESIGNEE WHEN THE EMERGENCY COORDINATOR IS
ON CALL) MUST IMMEDIATELY:
(1) ACTIVATE INTERNAL FACILITY ALARMS OR COMMUNICATION SYSTEMS, WHERE
APPLICABLE, TO NOTIFY ALL FACILITY PERSONNEL; AND
(2) NOTIFY APPROPRIATE STATE OR LOCAL AGENCIES WITH DESIGNATED
RESPONSE ROLES IF THEIR HELP IS NEEDED.
(B) WHENEVER THERE IS A RELEASE, FIRE, OR EXPLOSION, THE EMERGENCY
COORDINATOR MUST IMMEDIATELY IDENTIFY THE CHARACTER, EXACT SOURCE,
AMOUNT, AND A REAL EXTENT OF ANY RELEASED MATERIALS. HE MAY DO THIS BY
OBSERVATION OR REVIEW OF FACILITY RECORDS OR MANIFESTS AND, IF
NECESSARY, BY CHEMICAL ANALYSIS.
(C) CONCURRENTLY, THE EMERGENCY COORDINATOR MUST ASSESS POSSIBLE
HAZARDS TO HUMAN HEALTH OR THE ENVIRONMENT THAT MAY RESULT FROM THE
RELEASE, FIRE, OR EXPLOSION. THIS ASSESSMENT MUST CONSIDER BOTH DIRECT
AND INDIRECT EFFECTS OF THE RELEASE, FIRE, OR EXPLOSION (E.G., THE
EFFECTS OF ANY TOXIC, IRRITATING, OR ASPHYXIATING GASES THAT ARE
GENERATED, OR THE EFFECTS OF ANY HAZARDOUS SURFACE WATER RUN-OFFS FROM
WATER OR CHEMICAL AGENTS USED TO CONTROL FIRE AND HEAT-INDUCED
EXPLOSIONS).
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 085 OF 106
COSTLE D M ADMINISTRATOR
EPA
113449
REGULATION
(D) IF THE EMERGENCY COORDINATOR DETERMINES THAT THE FACILITY HAS HAD
A RELEASE, FIRE, OR EXPLOSION WHICH COULD THREATEN HUMAN HEALTH, OR THE
ENVIRONMENT, OUTSIDE THE FACILITY, HE MUST REPORT HIS FINDINGS AS
FOLLOWS:
(1) IF HIS ASSESSMENT INDICATES THAT EVACUATION OF LOCAL AREAS MAY BE
ADVISABLE, HE MUST IMMEDIATELY NOTIFY APPROPRIATE LOCAL AUTHORITIES. HE
MUST BE AVAILABLE TO HELP APPROPRIATE OFFICIALS DECIDE WHETHER LOCAL
AREAS SHOULD BE EVACUATED; AND
(2) HE MUST IMMEDIATELY NOTIFY EITHER THE GOVERNMENT OFFICIAL
DESIGNATED AS THE ON-SCENE COORDINATOR FOR THAT GEOGRAPHICAL AREA (IN
THE APPLICABLE REGIONAL CONTINGENCY PLAN UNDER PART 1510 OF THIS TITLE),
OR THE NATIONAL RESPONSE CENTER (USING THEIR 24-HOUR TOLL FREE NUMBER
800/424-8802). THE REPORT MUST INCLUDE:
(I) NAME AND TELEPHONE NUMBER OF REPORTER;
(II) NAME AND ADDRESS OF FACILITY;
(III) TIME AND TYPE OF INCIDENT (E.G., RELEASE, FIRE);
(IV) NAME AND QUANTITY OF MATEIRAL(S) INVOLVED, TO THE EXTENT KNOWN;
(V) THE EXTENT OF INJURIES, IF ANY; AND
(VI) THE POSSIBLE HAZARDS TO HUMAN HEALTH, OR THE ENVIRONMENT,
OUTSIDE THE FACILITY.
(E) DURING AN EMERGENCY, THE EMERGENCY COORDINATOR MUST TAKE ALL
REASONABLE MEASURES NECESSARY TO ENSURE THAT FIRES, EXPLOSIONS, AND
RELEASES DO NOT OCCUR, RECUR, OR SPREAD TO OTHER HAZARDOUS WASTE AT THE
FACILITY. THESE MEASURES MUST INCLUDE, WHERE APPLICABLE, STOPPING
PROCESSES AND OPERATIONS, COLLECTING AND CONTAINING RELEASED WASTE, AND
REMOVING OR ISOLATING CONTAINERS.
(F) IF THE FACILITY STOPS OPERATIONS IN RESPONSE TO A FIRE, EXPLOSION
OR RELEASE, THE EMERGENCY COORDINATOR MUST MONITOR FOR LEAKS, PRESSURE
BUILDUP, GAS GENERATION, OR RUPTURES IN VALVES, PIPES, OR OTHER
EQUIPMENT, WHEREVER THIS IS APPROPRIATE.
(G) IMMEDIATELY AFTER AN EMERGENCY, THE EMERGENCY COORDINATOR MUST
PROVIDE FOR TREATING, STORING, OR DISPOSING OF RECOVERED WASTE,
CONTAMINATED SOIL OR SURFACE WATER, OR ANY OTHER MATERIAL THAT RESULTS
FROM A RELEASE, FIRE, OR EXPLOSION AT THE FACILITY. (COMMENT: UNLESS
THE OWNER OR OPERATOR CAN DEMONSTRATE, IN ACCORDANCE WITH SECTION
261.3(C) OR (D) OF THIS CHAPTER, THAT THE RECOVERED MATERIAL IS NOT A
HAZARDOUS WASTE, THE OWNER OR OPERATOR BECOMES A GENERATOR OF HAZARDOUS
WASTE AND MUST MANAGE IT IN ACCORDANCE WITH ALL APPLICABLE REQUIREMENTS
OF PARTS 262, 263, AND 265 OF THIS CHAPTER.)
(H) THE EMERGENCY COORDINATOR MUST ENSURE THAT, IN THE AFFECTED
AREA(S) OF THE FACILITY;
(1) NO WASTE THAT MAY BE INCOMPATIBLE WITH THE RELEASED MATERIAL IS
TREATED, STORED, OR DISPOSED OF UNTIL CLEANUP PROCEDURES ARE COMPLETED;
AND
(2) ALL EMERGENCY EQUIPMENT LISTED IN THE CONTINGENCY PLAN IS
CLEANED AND FIT FOR ITS INTENDED USE BEFORE OPERATIONS ARE
RESUMED.
(I) THE OWNER OR OPERATOR MUST NOTIFY THE REGIONAL ADMINISTRATOR, AND
APPROPRIATE STATE AND LOCAL AUTHORITIES, THAT THE FACILITY IS
INCOMPLIANCE WITH PARAGRAPH (H) OF THIS SECTION BEFORE OPERATIONS ARE
RESUMED IN THE AFFECTED AREA(S) OF THE FACILITY.
(J) THE OWNER OR OPERATOR MUST NOTE IN THE OPERATING RECORD THE TIME,
DATE, AND DETAILS OF ANY INCIDENT THAT REQUIRES IMPLEMENTING THE
CONTINGENCY PLAN. WITHIN 15 DAYS AFTER THE INCIDENT, HE MUST SUBMIT A
WRITTEN REPORT ON THE INCIDENT TO THE REGIONAL ADMINISTRATOR. THE
REPORT MUST INCLUDE:
(1) NAME, ADDRESS AND TELEPHONE NUMBER OF THE OWNER OR OPERATOR;
(2) NAME, ADDRESS, AND TELEPHONE NUMBER OF THE FACILITY;
(3) DATE, TIME, AND TYPE OF INCIDENT (E.G., FIRE, EXPLOSION);
(4) NAME AND QUANTITY OF MATERIAL(S) INVOLVED;
(5) THE EXTENT OF INJURIES, IF ANY;
(6) AN ASSESSMENT OF ACTUAL OR POTENTIAL HAZARDS TO HUMAN HEALTH OR
THE ENVIRONMENT, WHERE THIS IS APPLICABLE; AND
(7) ESTIMATED QUANTITY AND DISPOSITION OF RECOVERED MATERIAL THAT
RESULTED FROM THE INCIDENT.
THE REGULATIONS IN THIS SUBPART APPLY TO OWNERS AND OPERATORS OF BOTH
ON-SITE AND OFF-SITE FACILITIES, EXCEPT AS SECTION 265.1 PROVIDES
OTHERWISE. SECTIONS 265.71, 265.72, AND 265.76 DO NOT APPLY TO OWNERS
AND OPERATORS OF ON-SITE FACILITIES THAT DO NOT RECEIVE ANY HAZARDOUS
WASTE FROM OFF-SITE SOURCES.
(A) IF A FACILITY RECEIVES HAZARDOUS WASTE ACCOMPANIED BY A MANIFEST,
THE OWNER OR OPERATOR, OR HIS AGENT, MUST;
(1) SIGN AND DATE EACH COPY OF THE MANIFEST TO CERTIFY THAT THE
HAZARDOUS WASTE COVERED BY THE MANIFEST WAS RECEIVED;
(2) NOTE ANY SIGNIFICANT DISCREPANCIES IN THE MANIFEST (AS DEFINED IN
SECTION 265.72(A)) ON EACH COPY OF THE MANIFEST; (COMMENT: THE AGENCY
DOES NOT INTEND THAT THE OWNER OR OPERATOR OF A FACILITY WHOSE
PROCEDURES UNDER SECTION 265.13(C) INCLUDE WASTE ANALYSIS MUST PERFORM
THAT ANALYSIS BEFORE SIGNING THE MANIFEST AND GIVING IT TO THE
TRANSPORTER. SECTION 265.72(B), HOWEVER, REQUIRES REPORTING AN
UNRECONCILED DISCREPANCY DISCOVERED DURING LATER ANALYSIS.)
(3) IMMEDIATELY GIVE THE TRANSPORTER AT LEAST ONE COPY OF THE SIGNED
MANIFEST;
(4) WITHIN 30 DAYS AFTER THE DELIVERY, SEND A COPY OF THE MANIFEST TO
THE GENERATOR; AND
(5) RETAIN AT THE FACILITY A COPY OF EACH MANIFEST FOR AT LEAST THREE
YEARS FROM THE DATE OF DELIVERY.
(B) IF A FACILITY RECEIVES, FROM A RAIL OR WATER (BULK SHIPMENT)
TRANSPORTER, HAZARDOUS WASTE WHICH IS ACCOMPANIED BY A SHIPPING PAPER
CONTAINING ALL THE INFORMATION REQUIRED ON THE MANIFEST (EXCLUDING THE
EPA IDENTIFICATION NUMBERS, GENERATOR'S CERTIFICATION, AND SIGNATURES),
THE OWNER OR OPERATOR, OR HIS AGENT, MUST:
(1) SIGN AND DATE EACH COPY OF THE SHIPPING PAPER TO CERTIFY THAT THE
HAZARDOUS WASTE COVERED BY THE SHIPPING PAPER WAS RECEIVED;
(2) NOTE ANY SIGNIFICANT DISCREPANCIES IN THE SHIPPING PAPER (AS
DEFINED IN SECTION 265.72(A)) ON EACH COPY OF THE SHIPPING PAPER;
(COMMENT: THE AGENCY DOES NOT INTEND THAT THE OWNER OR OPERATOR OF A
FACILITY WHOSE PROCEDURES UNDER SECTION 265.13(C) INCLUDE WASTE ANALYSIS
MUST PERFORM THAT ANALYSIS BEFORE SIGNING THE SHIPPING PAPER AND GIVING
IT TO THE TRANSPORTER. SECTION 265.72(B), HOWEVER, REQUIRES REPORTING
AN UNRECONCILED DISCREPANCY DISCOVERED DURING LATER ANALYSIS).
(3) IMMEDIATELY GIVE THE RAIL OR WATER (BULK SHIPMENT) TRANSPORTER AT
LEAST ONE COPY OF THE SHIPPING PAPER;
(4) WITHIN 30 DAYS AFTER THE DELIVERY, SEND A COPY OF THE SHIPPING
PAPER TO THE GENERATOR; HOWEVER, IF THE MANIFEST IS RECEIVED WITHIN 30
DAYS AFTER THE DELIVERY, THE OWNER OR OPERATOR OR HIS AGENT, MUST SIGN
AND DATE THE MANIFEST AND RETURN IT TO THE GENERATOR IN LIEU OF THE
SHIPPING PAPER; AND (COMMENT: SECTION 262.23(C) OF THIS CHAPTER
REQUIRES THE GENERATOR TO SEND THREE COPIES OF THE MANIFEST TO THE
FACILITY WHEN HAZARDOUS WASTE IS SENT BY RAIL OR WATER (BULK SHIPMENT).
(5) RETAIN AT THE FACILITY A COPY OF EACH SHIPPING PAPER AND MANIFEST
FOR AT LEAST THREE YEARS FROM THE DATE OF DELIVERY.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 086 OF 106
COSTLE D M ADMINISTRATOR
EPA
113450
REGULATION
(A) MANIFEST DISCREPANCIES ARE DIFFERENCES BETWEEN THE QUANTITY OR
TYPE OF HAZARDOUS WASTE DESIGNATED ON THE MANIFEST OR SHIPPING PAPER,
AND THE QUANTITY OR TYPE OF HAZARDOUS WASTE A FACILITY ACUTALLY
RECEIVES. SIGNIFICANT DISCREPANCIES IN QUANTITY ARE: (1) FOR BULK
WASTE, VARIATIONS GREATER THAN 10 PERCENT IN WEIGHT, AND (2) FOR BATCH
WASTE, ANY VARIATION IN PIECE COUNT, SUCH AS A DISCREPANCY OF ONE DRUM
IN A TRUCKLOAD. SIGNIFICANT DISCREPANCIES IN TYPE ARE OBVIOUS
DIFFERENCES WHICH CAN BE DISCOVERED BY INSPECTION OR WASTE ANALYSIS,
SUCH AS WASTE SOLVENT SUBSTITUTED FOR WASTE ACID, OR TOXIC CONSTITUENTS
NOT REPORTED ON THE MANIFEST OR SHIPPING PAPER.
(B) UPON DISCOVERING A SIGNIFICANT DISCREPANCY, THE OWNER OR OPERATOR
MUST ATTEMPT TO RECONCILE THE DISCREPANCY WITH THE WASTE GENERATOR OR
TRANSPORTER (E.G., WITH TELEPHONE CONVERSATIONS). IF THE DISCREPANCY IS
NOT RESOLVED WITHIN 15 DAYS AFTER RECEIVING THE WASTE, THE OWNER OR
OPERATOR MUST IMMEDIATELY SUBMIT TO THE REGIONAL ADMINISTRATOR A LETTER
DESCRIBING THE DISCREPANCY AND ATTEMPTS TO RECONCILE IT, AND A COPY OF
THE MANIFEST OR SHIPPING PAPER AT ISSUE.
(A) THE OWNER OR OPERATOR MUST KEEP A WRITTEN OPERATING RECORD AT HIS
FACILITY.
(B) THE FOLLOWING INFORMATION MUST BE RECORDED, AS IT BECOMES
AVAILABLE, AND MAINTAINED IN THE OPERATING RECORD UNTIL CLOSURE OF THE
FACILITY;
(1) A DESCRIPTION AND THE QUANTITY OF EACH HAZARDOUS WASTE RECEIVED,
AND THE METHOD(S) AND DATE(S) OF ITS TREATMENT, STORAGE, OR DISPOSAL AT
THE FACILITY AS REQUIRED BY APPENDIX I;
(2) THE LOCATION OF EACH HAZARDOUS WASTE WITHIN THE FACILITY AND THE
QUANTITY AT EACH LOCATION. FOR DISPOSAL FACILITIES, THE LOCATION AND
QUANTITY OF EACH HAZARDOUS WASTE MUST BE RECORDED ON A MAP OR DIAGRAM OF
EACH CELL OR DISPOSAL AREA. FOR ALL FACILITIES, THIS INFORMATION MUST
INCLUDE CROSS-REFERENCES TO SPECIFIC MANIFEST DOCUMENT NUMBERS, IF THE
WASTE WAS ACCOMPANIED BY A MANIFEST; (COMMENT: SEE SECTIONS 265.119,
265.279, AND 265.309 FOR RELATED REQUIREMENTS.)
(3) RECORDS AND RESULTS OF WASTE ANALYSES AND TRIAL TESTS PERFORMED
AS SPECIFIED IN SECTIONS 265.13, 265.193, 265.225, 265.252, 265.273,
265.345, 265.375, AND 265.402;
(4) SUMMARY REPORTS AND DETAILS OF ALL INCIDENTS THAT REQUIRE
IMPLEMENTING THE CONTINGENCY PLAN AS SPECIFIED IN SECTION 265.56(J);
(5) RECORDS AND RESULTS OF INSPECTIONS AS REQUIRED BY SECTION
265.15(D) (EXCEPT THESE DATA NEED BE KEPT ONLY THREE YEARS);
(6) MONITORING, TESTING, OR ANALYTICAL DATA WHERE REQUIRED BY
SECTIONS 265.90, 265.94, 265.276, 265.278, 265.280(D)(1), 265.347, AND
265.377; AND. (COMMENT: AS REQUIRED BY SECTION 265.94, MONITORING
DATA AT DISPOSAL FACILITIES MUST BE KEPT THROUGHOUT THE POST-CLOSURE
PERIOD.)
(7) ALL CLOSURE COST ESTIMATES UNDER SECTION 265.142 AND, FOR
DISPOSAL FACILITIES, ALL POST-CLOSURE COST ESTIMATES UNDER SECTION
265.144.
(A) ALL RECORDS, INCLUDING PLANS, REQUIRED UNDER THIS PART MUST BE
FURNISHED UPON REQUEST, AND MADE AVAILABLE AT ALL REASONABLE TIMES FOR
INSPECTION, BY ANY OFFICER, EMPLOYEE, OR REPRESENTATIVE OF EPA WHO IS
DULY DESIGNATED BY THE ADMINISTRATOR.
(B) THE RETENTION PERIOD FOR ALL RECORDS REQUIRED UNDER THIS PART IS
EXTENDED AUTOMATICALLY DURING THE COURSE OF ANY UNRESOLVED ENFORCEMENT
ACTION REGARDING THE FACILITY OR AS REQUESTED BY THE ADMINISTRATOR.
(C) A COPY OF RECORDS OF WASTE DISPOSAL LOCATIONS AND QUANTITIES
UNDER SECTION 265.73(B)(2) MUST BE SUBMITTED TO THE REGIONAL
ADMINISTRATOR AND LOCAL LAND AUTHORITY UPON CLOSURE OF THE FACILITY (SEE
SECTION 265.119).
THE OWNER OR OPERATOR MUST PREPARE AND SUBMIT A SINGLE COPY OF AN
ANNUAL REPORT TO THE REGIONAL ADMINISTRATOR BY MARCH 1 OF EACH YEAR.
THE REPORT FORM AND INSTRUCTIONS IN APPENDIX II MUST BE USED FOR THIS
REPORT. THE ANNUAL REPORT MUST COVER FACILITY ACTIVITIES DURING THE
PREVIOUS CALENDAR YEAR AND MUST INCLUDE THE FOLLOWING INFORMATION;
(A) THE EPA IDENTIFICATION NUMBER, NAME, AND ADDRESS OF THE FACILITY;
(B) THE CALENDAR YEAR COVERED BY THE REPORT;
(C) FOR OFF-SITE FACILITIES, THE EPA IDENTIFICATION NUMBER OF EACH
HAZARDOUS WASTE GENERATOR FROM WHICH THE FACILITY RECEIVED A HAZARDOUS
WASTE DURING THE YEAR; FOR IMPORTED SHIPMENTS, THE REPORT MUST GIVE THE
NAME AND ADDRESS OF THE FOREIGN GENERATOR;
(D) A DESCRIPTION AND THE QUANTITY OF EACH HAZARDOUS WASTE THE
FACILITY RECEIVED DURING THE YEAR. FOR OFF-SITE FACILITIES, THIS
INFORMATION MUST BE LISTED BY EPA IDENTIFICATION NUMBER OF EACH
GENERATOR;
(E) THE METHOD OF TREATMENT, STORAGE, OR DISPOSAL FOR EACH HAZARDOUS
WASTE;
(F) MONITORING DATA UNDER SECTION 265.94(A)(2)(II) AND (III), AND
(B)(2), WHERE REQUIRED;
(G) THE MOST RECENT CLOSURE COST ESTIMATE UNDER SECTION 265.142, AND,
FOR DISPOSAL FACILITIES, THE MOST RECENT POST-CLOSURE COST ESTIMATE
UNDER SECTION 265.144; AND
(H) THE CERTIFICATION SIGNED BY THE OWNER OR OPERATOR OF THE FACILITY
OR HIS AUTHORIZED REPRESENTATIVE.
IF A FACILITY ACCEPTS FOR TREATMENT, STORAGE, OR DISPOSAL ANY
HAZARDOUS WASTE FROM AN OFF-SITE SOURCE WITHOUT AN ACCOMPANYING
MANIFEST, OR WITHOUT AN ACCOMPANYING SHIPPING PAPER AS DESCRIBED IN
SECTION 263.20(E)(2) OF THIS CHAPTER, AND IF THE WASTE IS NOT EXCLUDED
FROM THE MANIFEST REQUIREMENT BY SECTION 261.5 OF THIS CHAPTER, THEN THE
OWNER OR OPERATOR MUST PREPARE AND SUBMIT A SINGLE COPY OF A REPORT TO
THE REGIONAL ADMINISTRATOR WITHIN 15 DAYS AFTER RECEIVING THE WASTE.
THE REPORT FORM AND INSTRUCTIONS IN APPENDIX II MUST BE USED FOR THIS
REPORT. THE REPORT MUST INCLUDE THE FOLLOWING INFORMATION;
(A) THE EPA IDENTIFICATION NUMBER, NAME, AND ADDRESS OF THE FACILITY;
(B) THE DATE THE FACILITY RECEIVED THE WASTE;
(C) THE EPA IDENTIFICATION NUMBER, NAME, AND ADDRESS OF THE GENERATOR
AND THE TRANSPORTER, IF AVAILABLE;
(D) A DESCRIPTION AND THE QUANTITY OF EACH UNMANIFESTED HAZARDOUS
WASTE THE FACILITY RECEIVED;
(E) THE METHOD OF TREATMENT, STORAGE, OR DISPOSAL FOR EACH HAZARDOUS
WASTE;
(F) THE CERTIFICATION SIGNED BY THE OWNER OR OPERATOR OF THE FACILITY
OR HIS AUTHORIZED REPRESENTATIVE; AND
(G) A BRIEF EXPLANATION OF WHY THE WASTE WAS MANIFESTED, IF KNOWN.
(COMMENT: SMALL QUANTITIES OF HAZARDOUS WASTE ARE EXCLUDED FROM
REGULATION UNDER THIS PART AND DO NOT REQUIRE A MANIFEST. WHERE A
FACILITY RECEIVES UNMANIFESTED HAZARDOUS WASTES, THE AGENCY SUGGESTS
THAT THE OWNER OR OPERATOR OBTAIN FROM EACH GENERATOR A CERTIFICATION
THAT THE WASTE QUALIFIES FOR EXCLUSION. OTHERWISE, THE AGENCY SUGGESTS
THAT THE OWNER OR OPERATOR FILE UN UNMANIFESTED WASTE REPORT FOR THE
HAZARDOUS WASTE MOVEMENT.)
IN ADDITION TO SUBMITTING THE ANNUAL REPORT AND UNMANIFESTED WASTE
REPORTS DESCRIBED IN SECTIONS 265.75 AND 265.76, THE OWNER OR OPERATOR
MUST ALSO REPORT TO THE REGIONAL ADMINISTRATOR:
(A) RELEASES, FIRES, AND EXPLOSIONS AS SPECIFIED IN SECTION
265.56(J);
(B) GROUND-WATER CONTAMINATION AND MONITORING DATA AS SPECIFIED IN
SECTIONS 265.93 AND 265.94; AND
(C) FACILITY CLOSURE AS SPECIFIED IN SECTIONS 265.115.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 087 OF 106
COSTLE D M ADMINISTRATOR
EPA
113451
REGULATION
(A) WITHIN ONE YEAR AFTER THE EFFECTIVE DATE OF THESE REGULATIONS,
THE OWNER OR OPERATOR OF A SURFACE IMPOUNDMENT, LANDFILL, OR LAND
TREATMENT FACILITY WHICH IS USED TO MANAGE HAZARDOUS WASTE MUST
IMPLEMENT A GROUND-WATER MONITORING PROGRAM CAPABLE OF DETERMINING THE
FACILITY'S IMPACT ON THE QUALITY OF GROUND WATER IN THE UPPERMOST
AQUIFIER UNDERLYING THE FACILITY, EXCEPT AS SECTION 265.1 AND PARAGRAPH
(C) OF THIS SECTION PROVIDE OTHERWISE.
(B) EXCEPT AS PARAGRAPHS (C) AND (D) OF THIS SECTION PROVIDE
OTHERWISE, THE OWNER OR OPERATOR MUST INSTALL, OPERATE, AND MAINTAIN A
GROUND-WATER MONITORING SYSTEM WHICH MEETS THE REQUIREMENTS OF SECTION
265.91, AND MUST COMPLY WITH SECTIONS 265.92 - 265.94. THIS
GROUND-WATER MONITORING PROGRAM MUST BE CARRIED OUT DURING THE ACTIVE
LIFE OF THE FACILITY, AND FOR DISPOSAL FACILITIES, DURING THE
POST-CLOSURE CARE PERIOD AS WELL.
(C) ALL OR PART OF THE GROUND-WATER MONITORING REQUIREMENTS OF THIS
SUBPART MAY BE WAIVED IF THE OWNER OR OPERATOR CAN DEMONSTRATE THAT
THERE IS A LOW POTENTIAL FOR MIGRATION OF HAZARDOUS WASTE OR HAZARDOUS
WASTE CONSTITUENTS FROM THE FACILITY VIA THE UPPERMOST AQUIFER TO WATER
SUPPLY WELLS (DOMESTIC, INDUSTRIAL, OR AGRICULTURAL) OR TO SURFACE
WATER. THIS DEMONSTRATION MUST BE IN WRITING, AND MUST BE KEPT AT THE
FACILITY. THIS DEMONSTRATION MUST BE CERTIFIED BY A QUALIFIED GEOLOGIST
OR GEOTECHNICAL ENGINEER AND MUST ESTABLISH THE FOLLOWING;
(1) THE POTENTIAL FOR MIGRATION OF HAZARDOUS WASTE OR HAZARDOUS WASTE
CONSTITUENTS FROM THE FACILITY TO THE UPPERMOST AQUIFIER, BY AN
EVALUATION OF;
(I) A WATER BALANCE OF PRECIPITATION, EVAPOTRANSPIRATION, RUNOFF, AND
INFILTRATION; AND
(II) UNSATURATED ZONE CHARACTERISTICS (I.E., GEOLOGIC MATERIALS,
PHYSICAL PROPERTIES, AND DEPTH TO GROUND WATER); AND
(2) THE POTENTIAL FOR HAZARDOUS WASTE OR HAZARDOUS WASTE CONSTITUENTS
WHICH ENTER THE UPPERMOST AQUIFER TO MIGRATE TO A WATER SUPPLY WELL OR
SURFACE WATER, BY AN EVALUATION OF;
(I) SATURATED ZONE CHARACTERISTICS (I.E., GEOLOGIC MATERIALS,
PHYSICAL PROPERTIES, AND RATE OF GROUND-WATER FLOW); AND
(II) THE PROXIMITY OF THE FACILITY TO WATER SUPPLY WELLS OR SURFACE
WATER.
(D) IF AN OWNER OR OPERATOR ASSUMES (OR KNOWS) THAT GROUND-WATER
MONITORING OF INDICATOR PARAMETERS IN ACCORDANCE WITH SECTIONS 265.91
AND 265.92 WOULD SHOW STATISTICALLY SIGNIFICANT INCREASES (OR DECREASES
IN THE CASE OF PH) WHEN EVALUATED UNDER SECTION 265.93(B), HE MAY,
INSTALL, OPERATE, AND MAINTAIN AN ALTERNATE GROUND-WATER MONITORING
SYSTEM (OTHER THAN THE ONE DESCRIBED IN SECTIONS 265.91 AND 265.92). IF
THE OWNER OR OPERATOR DECIDES TO USE AN ALTERNATE GROUND WATER
MONITORING SYSTEM HE MUST;
(1) WITHIN ONE YEAR AFTER THE EFFECTIVE DATE OF THESE REGULATIONS,
SUBMIT TO THE REGIONAL ADMINISTRATOR A SPECIFIC PLAN, CERTIFIED BY A
QUALIFIED GEOLOGIST OR GEOTECHNICAL ENGINEER, WHICH SATISFIES THE
REQUIREMENTS OF SECTION 265.93(D)(3), FOR AN ALTERNATE GROUND-WATER
MONITORING SYSTEM;
(2) NOT LATER THAN ONE YEAR, AFTER THE EFFECTIVE DATE OF THESE
REGULATIONS, INITIATE THE DETERMINATIONS SPECIFIED IN SECTION
265.93(D)(4);
(3) PREPARE AND SUBMIT A WRITTEN REPORT IN ACCORDANCE WITH SECTION
265.93(D)(5);
(4) CONTINUE TO MAKE THE DETERMINATIONS SPECIFIED IN SECTION
265.93(D)(4) ON A QUARTERLY BASIS UNTIL FINAL CLOSURE OF THE FACILITY;
AND
(5) COMPLY WITH THE RECORDKEEPING AND REPORTING REQUIREMENTS IN
SECTION 265.94(B).
(A) A GROUND-WATER MONITORING SYSTEM MUST BE CAPABLE OF YIELDING
GROUND-WATER SAMPLES FOR ANALYSIS AND MUST CONSIST OF;
(1) MONITORING WELLS (AT LEAST ONE) INSTALLED HYDRAULICALLY
UPGRADIENT (I.E., IN THE DIRECTION OF INCREASING STATIC HEAD) FROM THE
LIMIT OF THE WASTE MANAGEMENT AREA. THEIR NUMBER, LOCATIONS, AND DEPTHS
MUST BE SUFFICIENT TO YIELD GROUND-WATER SAMPLES THAT ARE;
(I) REPRESENTATIVE OF BACKGROUND GROUND-WATER QUALITY IN THE
UPPERMOST AQUIFER NEAR THE FACILITY; AND
(II) NOT AFFECTED BY THE FACILITY; AND
(2) MONITORING WELLS (AT LEAST THREE) INSTALLED HYDRAULICALLY
DOWNGRADIENT (I.E., IN THE DIRECTION OF DECREASING STATIC HEAD) AT THE
LIMIT OF THE WASTE MANAGEMENT AREA. THEIR NUMBER, LOCATIONS, AND DEPTHS
MUST ENSURE THAT THEY IMMEDIATELY DETECT ANY STATISTICALLY SIGNIFICANT
AMOUNTS OF HAZARDOUS WASTE OR HAZARDOUS WASTE CONSTITUENTS THAT MIGRATE
FROM THE WASTE MANAGEMENT AREA TO THE UPPERMOST AQUIFIER.
(B) SEPARATE MONITORING SYSTEMS FOR EACH WASTE MANAGEMENT COMPONENT
OF A FACILITY ARE NOT REQUIRED PROVIDED THAT PROVISIONS FOR SAMPLING
UPGRADIENT AND DOWNGRADIENT WATER QUALITY WILL DETECT ANY DISCHARGE FROM
THE WASTE MANAGEMENT AREA.
(1) IN THE CASE OF A FACILITY CONSISTING OF ONLY ONE SURFACE
IMPOUNDMENT, LANDFILL, OR LAND TREATMENT AREA, THE WASTE MANAGEMENT AREA
IS DESCRIBED BY THE WASTE BOUNDARY (PERIMETER).
(2) IN THE CASE OF A FACILITY CONSISTING OF MORE THAN ONE SURFACE
IMPOUNDMENT, LANDFILL, OR LAND TREATMENT AREA, THE WASTE MANAGEMENT AREA
IS DESCRIBED BY AN IMAGINARY BOUNDARY LINE WHICH CIRCUMSCRIBES THE
SEVERAL WASTE MANAGEMENT COMPONENTS.
(C) ALL MONITORING WELLS MUST BE CASED INA MANNER THAT MAINTAINS THE
INTEGRITY OF THE MONITORING WELL BORE HOLE. THIS CASING MUST BE
SCREENED OR PERFORATED, AND PACKED WITH GRAVEL OR SAND WHERE NECESSARY,
TO ENABLE SAMPLE COLLECTION AT DEPTHS WHERE APPROPRIATE AQUIFER FLOW
ZONES EXIST. THE ANNULAR SPACE (I.E., THE SPACE BETWEEN THE BORE HOLE
AND WELL CASING) ABOVE THE SAMPLING DEPTH MUST BE SEALED WITH A SUITABLE
MATERIAL (E.G., CEMENT GROUT OR BENTONITE SLURRY) TO PREVENT
CONTAMINATION OF SAMPLES AND THE GROUND WATER.
(A) THE OWNER OR OPERATOR MUST OBTAIN AND ANALYZE SAMPLES FROM THE
INSTALLED GROUND-WATER MONITORING SYSTEM. THE OWNER OR OPERATOR MUST
DEVELOP AND FOLLOW A GROUND-WATER SAMPLING AND ANALYSIS PLAN. HE MUST
KEET THIS PLAN AT THIS FACILITY. THE PLAN MUST INCLUDE PROCEDURES AND
TECHNIQUES FOR:
(1) SAMPLE COLLECTION;
(2) SAMPLE PRESERVATION AND SHIPMENT;
(3) ANALYTICAL PROCEDURES: AND
(4) CHAIN OF CUSTODY CONTROL.
(COMMENT: SEE "PROCEDURES MANUAL FOR GROUND-WATER MONITORING
AT SOLID WASTE DISPOSAL FACILITIES," EPA-530/SW-611, AUGUST
1977 AND "METHODS FOR CHEMICAL ANALYSIS OF WATER AND WASTES,"
EPA-600/4-79-020, MARCH 1979 FOR DISCUSSIONS OF SAMPLING AND
ANALYSIS PROCEDURES.)
(B) THE OWNER OR OPERATOR MUST DETERMINE THE CONCENTRATION OR VALUE
OF THE FOLLOWING PARAMETERS IN GROUND-WATER SAMPLES IN ACCORDANCE WITH
PARAGRAPHS (C) AND (D) OF THIS SECTION;
(1) PARAMETERS CHARACTERIZING THE SUITABILITY OF THE GROUND WATER AS
A DRINKING WATER SUPPLY, AS SPECIFIED IN APPENDIX III.
(2) PARAMETERS ESTABLISHING GROUND-WATER QUALITY:
(I) CHLORIDE
(II) IRON
(III) MANGANESE
(IV) PHENOLS
(V) SODIUM
(VI) SULFATE
(COMMENT: THESE PARAMETERS ARE TO BE USED AS A BASIS FOR COMPARISON
IN THE EVENT A GROUND-WATER QUALITY ASSESSMENT IS REQUIRED UNDER SECTION
265.93(D).)
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 088 OF 106
COSTLE D M ADMINISTRATOR
EPA
113452
REGULATION
(3) PARAMETERS USED AS INDICATORS OF GROUND-WATER CONTAMINATION:
(I) PH
(II) SPECIFIC CONDUCTANCE
(III) TOTAL ORGANIC CARBON
(IV) TOTAL ORGANIC HALOGEN
(C)(1) FOR ALL MONITORING WELLS, THE OWNER OR OPERATOR MUST ESTABLISH
INITIAL BACKGROUND CONCENTRATIONS OR VALUES OF ALL PARAMETERS SPECIFIED
IN PARAGRAPH (B) OF THIS SECTION. HE MUST DO THIS QUARTERLY FOR ONE
YEAR.
(2) FOR EACH OF THE INDICATOR PARAMETERS SPECIFIED IN PARAGRAPH
(B)(3) OF THIS SECTION, AT LEAST FOUR REPLICATE MEASUREMENTS MUST BE
OBTAINED FOR EACH SAMPLE AND THE INITIAL BACKGROUND ARITHMETIC MEAN AND
VARIANCE MUST BE DETERMINED BY POOLING THE REPLICATE MEASUREMENTS FOR
THE RESPECTIVE PARAMETER CONCENTRATIONS OR VALUES IN SAMPLES OBTAINED
FROM UPGRADIENT WELLS DURING THE FIRST YEAR.
(D) AFTER THE FIRST YEAR, ALL MONITORING WELLS MUST BE SAMPLED AND
THE SAMPLES ANALYZED WITH THE FOLLOWING FREQUENCIES;
(1) SAMPLES COLLECTED TO ESTABLISH GROUND-WATER QUALITY MUST BE
OBTAINED AND ANALYZED FOR THE PARAMETERS SPECIFIED IN PARAGRAPH (B)(2)
OF THIS SECTION AT LEAST ANNUALLY.
(2) SAMPLES COLLECTED TO INDICATE GROUND-WATER CONTAMINATION MUST BE
OBTAINED AND ANALYZED FOR THE PARAMETERS SPECIFIED IN PARAGRAPH (B)(3)
OF THIS SECTION AT LEAST SEMI-ANNUALLY.
(E) ELEVATION OF THE GROUND-WATER SURFACE AT EACH MONITORING WELL
MUST BE DETERMINED EACH TIME A SAMPLE IS OBTAINED.
(A) WITHIN ONE YEAR AFTER THE EFFECTIVE DATE OF THESE REGULATIONS,
THE OWNER OR OPERATOR MUST PREPARE AN OUTLINE OF A GROUND-WATER QUALITY
ASSESSMENT PROGRAM. THE OUTLINE MUST DESCRIBE A MORE COMPREHENSIVE
GROUND-WATER MONITORING PROGRAM (THAN THAT DESCRIBED IN SECTIONS 265.91
AND 265.92) CAPABLE OF DETERMINING:
(1) WHETHER HAZARDOUS WASTE OR HAZARDOUS WASTE CONSTITUENTS HAVE
ENTERED THE GROUND WATER;
(2) THE RATE AND EXTENT OF MIGRATION OF HAZARDOUS WASTE OR HAZARDOUS
WASTE CONSTITUENTS IN THE GROUND WATER; AND
(3) THE CONCENTRATIONS OF HAZARDOUS WASTE OR HAZARDOUS WASTE
CONSTITUENTS IN THE GROUND WATER.
(B) FOR EACH INDICATOR PARAMETER SPECIFIED IN SECTION 265.92(B)(3),
THE OWNER OR OPERATORA MUST CALCULATE THE ARITHMETIC MEAN AND VARIANCE,
BASED ON AT LEAST FOUR REPLICATE MEASUREMENTS ON EACH SAMPLE, FOR EACH
WELL MONITORED IN ACCORDANCE WITH SECTION 265.92(D)(2), AND COMPARE
THESE RESULTS WITH ITS INITIAL BACKGROUND ARITHMETIC MEAN. THE
COMPARISON MUST CONSIDER INDIVIDUALLY EACH OF THE WELLS IN THE
MONITORING SYSTEM, AND MUST USE THE STUDENT'S T-TEST AT THE 0.01 LEVEL
OF SIGNIFICANE (SEE APPENDIX IV) TO DETERMINE STATISTICALLY SIGNIFICANT
INCREASES (AND DECREASES, IN THE CASE OF PH) OVER INITIAL BACKGROUND.
(C)(1) IF THE COMPARISONS FOR THE UPGRADIENT WELLS MADE UNDER
PARAGRAPH (B) OF THIS SECTION SHOW A SIGNIFICANT INCREASE (OR PH
DECREASE), THE OWNER OR OPERATOR MUST SUBMIT THIS INFORMATION IN
ACCORDANCE WITH SECTION 265.94(A)(2)(II).
(2) IF THE COMPARISONS FOR DOWNGRADIENT WELLS MADE UNDER PARAGRAPH
(B) OF THIS SECTION SHOW A SIGNIFICANT INCREASE (OR PH DECREASE), THE
OWNER OR OPERATOR MUST HTEN IMMEDIATELY OBTAIN ADDITIONAL GROUND-WATER
SAMPLES FROM THOSE DOWNGRADIENT WELLS WHERE A SIGNIFICANT DIFFERENCE WAS
DETECTED, SPLIT THE SAMPLES IN TWO, AND OBTAIN ANALYSES OF ALL
ADDITIONAL SAMPLES TO DETERMINE WHETHER THE SIGNIFICANT DIFFERENCE WAS A
RESULT OF LABORATORY ERROR.
(D)(1) IF THE ANALYSES PERFORMED UNDER PARAGRAPH (C)(2) OF THIS
SECTION CONFIRM THE SIGNIFICANT INCREASE (OR PH DECREASE), THE OWNER OR
OPERATOR MUST PROVIDE WRITTEN NOTICE TO THE REGIONAL ADMINISTRATOR -
WITHIN SEVEN DAYS OF THE DATE OF SUCH CONFIRMATION - THAT THE FACILITY
MAY BE AFFECTING GROUND-WATER QUALITY.
(2) WITHIN 15 DAYS AFTER THE NOTIFICATION UNDER PARAGRAPH (D)(1) OF
THIS SECTION, THE OWNER OR OPERATOR MUST DEVELOP AND SUBMIT TO THE
REGIONAL ADMINISTRATOR A SPECIFIC PLAN, BASED ON THE OUTLINE REQUIRED
UNDER PARAGRAPH (A) OF THIS SECTION AND CERTIFIED BY A QUALIFIED
GEOLOGIST OR GEOTECHNICAL ENGINEER. FOR A GROUND-WATER QUALITY
ASSESSMENT PROGRAM AT THE FACILITY.
(3) THE PLAN TO BE SUBMITTED UNDER SECTION 265.90(D)(1) OR PARAGRAPH
(D)(2) OF THIS SECTION MUST SPECIFY:
(I) THE NUMBER, LOCATION, AND DEPTH OF WELLS;
(II) SAMPLING AND ANALYTICAL METHODS FOR THOSE HAZARDOUS WASTES OR
HAZARDOUS WASTE CONSTITUENTS IN THE FACILITY;
(III) EVALUATION PROCEDURES, INCLUDING ANY USE OF PREVIOUSLY GATHERED
GROUND-WATER QUALITY INFORMATION; AND
(IV) A SCHEDULE OF IMPLEMENTATION.
(4) THE OWNER OR OPERATOR MUST IMPLEMENT THE GROUND-WATER QUALITY
ASSESSMENT PLAN WHICH SATISFIES THE REQUIREMENTS OF PARAGRAPH (D)(3) OF
THIS SECTION, AND, AT A MINIMUM, DETERMINE:
(I) THE RATE AND EXTENT OF MIGRATION OF THE HAZARDOUS WASTE OR
HAZARDOUS WASTE CONSTITUENTS IN THE GROUND WATER; AND
(II) THE CONCENTRATIONS OF THE HAZARDOUS WASTE OR HAZARDOUS WASTE
CONSTITUENTS IN THE GROUND WATER.
(5) THE OWNER OR OPERATOR MUST MAKE HIS FIRST DETERMINATION UNDER
PARAGRAPH (D)(4) OF THIS SECTION AS SOON AS TECHNICALLY FEASIBLE, AND,
WITHIN 15 DAYS AFTER THAT DETERMINATION, SUBMIT TO THE REGIONAL
ADMINISTRATOR A WRITTEN REPORT CONTAINING AN ASSESSMENT OF THE
GROUND-WATER QUALITY.
(6) IF THE OWNERS OR OPERATOR DETERMINES, BASED ON THE RESULTS OF THE
FIRST DETERMINATION UNDER PARAGRAPH (D)(4) OF THIS SECTION, THAT NO
HAZARDOUS WASTE OR HAZARDOUS WASTE CONSTITUENTS FROM THE FACILITY HAVE
ENTERED THE GROUND WATER, THEN HE MAY REINSTATE THE INDICATOR EVALUATION
PROGRAM DESCRIBED IN SECTION 265.92 AND PARAGRAPH (B) OF THIS SECTION.
IF THE OWNER OR OPERATOR REINSTATES THE INDICATOR EVALUATION PROGRAM, HE
MUST SO NOTIFY THE REGIONAL ADMINISTATOR IN THE REPORT SUBMITTED UNDER
PARAGRAPH (D)(5) OF THIS SECTION.
(7) IF THE OWNER OR OPERATOR DETERMINES, BASED ON THE FIRST
DETERMINATION UNDER PARAGRAPH (D)(4) OF THIS SECTION, THAT HAZARDOUS
WASTE OR HAZARDOUS WASTE CONSTITUENTS FROM THE FACILITY HAVE ENTERED THE
GROUND WATER, THEN HE:
(I) MUST CONTINUE TO MAKE THE DETERMINATIONS REQUIRED UNDER PARAGRAPH
(D)(4) OF THIS SECTION ON A QUARTERLY BASIS UNTIL FINAL CLOSURE OF THE
FACILITY, IF THE GROUND-WATER QUALITY ASSESSMENT PLAN WAS IMPLEMENTED
PRIOR TO FINAL CLOSURE OF THE FACILITY; OR
(II) MAY CEASE TO MAKE THE DETERMINATIONS REQUIRED UNDER PARAGRAPH
(D)(4) OF THIS SECTION, IF THE GROUND-WATER QUALITY ASSESSMENT PLAN WAS
IMPLEMENTED DURING THE POST-CLOSURE CARE PERIOD.
(E) NOTWITHSTANDING ANY OTHER PROVISION OF THIS SUBPART, ANY
GROUND-WATER QUALITY ASSESSMENT TO SATISFY THE REQUIREMENTS OF SECTION
265.93(D)(4) WHICH IS INITIATED PRIOR TO FINAL CLOSURE OF THE FACILITY
MUST BE COMPLETED AND REPORTED IN ACCORDANCE WITH SECTION 265.93(D)(5).
(F) UNLESS THE GROUND WATER IS MONITORED TO SATISFY THE REQUIREMENTS
OF SECTION 265.93(D)(4), AT LEAST ANNUALLY THE OWNER OR OPERATOR MUST
EVALUATE THE DATA ON GROUND-WATER SURFACE ELEVATIONS OBTAINED UNDER
SECTION 265.92(E) TO DETERMINE WHETHER THE REQUIREMENTS UNDER SECTION
265.91(A) FOR LOCATING THE MONITORING WELLS CONTINUES TO BE SATISFIED.
IF THE EVALUATION SHOWS THAT SECTION 265.91(A) IS NO LONGER SATISFIED,
THE OWNER OR OPERATOR MUST IMMEDIATELY MODIFY THE NUMBER, LOCATION, OR
DEPTH OF THE MONITORING WELLS TO BRING THE GROUND-WATER MONITORING
SYSTEM INTO COMPLIANCE WITH THIS REQUIREMENT.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 089 OF 106
COSTLE D M ADMINISTRATOR
EPA
113453
REGULATION
(A) UNLESS THE GROUND WATER IS MONITORED TO SATISFY THE REQUIREMENTS
OF SECTION 265.93(D)(4), THE OWNER OR OPERATOR MUST:
(1) KEEP RECORDS OF THE ANALYSES REQUIRED IN SECTION 265.92(C) AND
(D), THE ASSOCIATED GROUND-WATER SURFACE ELEVATIONS REQUIRED IN SECTION
265.92(E), AND THE EVALUATIONS REQUIRED IN SECTION 265.93(B) THROUGHOUT
THE ACTIVE LIFE OF THE FACILITY, AND, FOR DISPOSAL FACILITIES,
THROUGHOUT THE POST-CLOSURE CARE PERIOD AS WELL; AND
(2) REPORT THE FOLLOWING GROUND-WATER MONITORING INFORMATION TO THE
REGIONAL ADMINISTRATOR;
(I) DURING THE FIRST YEAR WHEN INITIAL BACKGROUND CONCENTRATIONS ARE
BEING ESTABLISHED FOR THE FACILITY: CONCENTRATIONS OR VALUES OF THE
PARAMETERS LISTED IN SECTION 265.92(B)(1) FOR EACH GROUND-WATER
MONITORING WELL WITHIN 15 DAYS AFTER COMPLETING EACH QUARTERLY ANALYSIS.
THE OWNER OR OPERATOR MUST SEPARATELY IDENTIFY FOR EACH MONITORING WELL
ANY PARAMETERS WHOSE CONCENTRATION OR VALUE HAS BEEN FOUND TO EXCEED THE
MAXIMUM CONTAMINANT LEVELS LISTED IN APPENDIX III.
(II) ANNUALLY: CONCENTRATIONS OR VALUES OF THE PARAMETERS LISTED IN
SECTION 265.92(B)(3) FOR EACH GROUND-WATER MONITORING WELL, ALONG WITH
THE REQUIRED EVALUATIONS FOR THESE PARAMETERS UNDER SECTION 265.93(B).
THE OWNER OR OPERATOR MUST SEPARATELY IDENTIFY ANY SIGNIFICANT
DIFFERENCES FROM INITIAL BACKGROUND FOUND IN THE UPGRADIENT WELLS, IN
ACCORDANCE WITH SECTION 265.93(C)(1). DURING THE ACTIVE LIFE OF THE
FACILITY, THIS INFORMATION MUST BE SUBMITTED AS PART OF THE ANNUAL
REPORT REQUIRED UNDER SECTION 265.75.
(III) AS A PART OF THE ANNUAL REPORT REQUIRED UNDER SECTION 265.75;
RESULTS OF THE EVALUATION OF GROUND-WATER SURFACE ELEVATIONS UNDER
SECTION 265.93(F), AND A DESCRIPTION OF THE RESPONSE TO THAT EVALUATION,
WHERE APPLICABLE.
(B) IF THE GROUNDWATER IS MONITORED TO SATISFY THE REQUIREMENT OF
SECTION 265.93(D)(4), THE OWNER OR OPERATOR MUST:
(1)KEEP RECORDS OF THE ANALYSES AND EVALUATIONS SPECIFIED INTHE PLAN,
WHICH SATISFIES THE REQUIREMENTS OF SECTION 265.93(D)(3), THROUGHOUT THE
ACTIVE LIFE OF THE FACILITY, AND, FOR DISPOSAL FACILITIES, THROUGHOUT
THE POST-CLOSURE CARE PERIOD AS WELL; AND
(2) ANNUALLY, UNTIL FINAL CLOSURE OF THE FACILITY, SUBMIT TO THE
REGIONAL ADMINISTRATOR A REPORT CONTAINING THE RESULTS OF HIS
GROUND-WATER QUALITY ASSESSMENT PROGRAM WHICH INCLUDES, BUT IS NOT
LIMITED TO, THE CALCULATED (OR MEASURED) RATE OF MIGRATION OF HAZARDOUS
WASTE OR HAZARDOUS WASTE CONSTITUENTS IN THE GROUND WATER DURING THE
REPORTING PERIOD. THIS REPORT MUST BE SUBMITTED AS PART OF THE ANNUAL
REPORT REQUIRED UNDER SECTION 265.75.
EXCEPT AS SECTION 265.1 PROVIDES OTHERWISE:
(A) SECTIONS 265.111 - 265.115 (WHICH CONCERN CLOSURE) APPLY TO THE
OWNERS AND OPERATORS OF ALL HAZARDOUS WASTE FACILITIES; AND
(B) SECTIONS 265.117 - 265.120 (WHICH CONCERN POST-CLOSURE CARE)
APPLY TO THE OWNERS AND OPERATORS OF ALL DISPOSAL FACILITIES.
THE OWNER OR OPERATOR MUST CLOSE HIS FACILITY IN A MANNER THAT: (A)
MINIMIZES THE NEED FOR FURTHER MAINTENANCE, AND (B) CONTROL, MINIMIZES
OR ELIMINATES, TO THE EXTENT NECESSARY TO PROTECT HUMAN HEALTH AND THE
ENVIRONMENT, POST-CLOSURE ESCAPE OF HAZARDOUS WASTE, HAZARDOUS WASTE
CONSTITUENTS, LEACHATE, CONTAMINATED RAINFALL, OR WASTE DECOMPOSITION
PRODUCTS TO THE GROUND WATER, OR SURFACE WATERS, OR TO THE ATMOSPHERE.
(A) ON THE EFFECTIVE DATE OF THESE REGULATIONS, THE OWNER OR OPERATOR
MUST HAVE A WRITTENCLOSURE PLAN. HE MUST KEEP THIS PLAN AT THE
FACILITY. THIS PLAN MUST IDENTIFY THE STEPS NECESSARY TO COMPLETELY
CLOSE THE FACILITY AT ANY POINT DURING ITS INTENDED LIFE AND AT THE END
OF ITS INTENDEDLIFE. THE CLOSURE PLAN MUST INCLUDE, AT LEAST:
(1) A DESCRIPTION OF HOW AND WHEN THE FACILITY WILL BE PARTIALLY
CLOSED, IF APPLICABLE, AND ULTIMATELY CLOSED. THE DESCRIPTION MUST
IDENTIFY THE MAXIMUM EXTENT OF THE OPERATION WHICH WILL BE UNCLOSED
DURING THE LIFE OF THE FACILITY, AND HOW THE REQUIREMENTS OF SECTION
265.111 AND THE APPLICABLE CLOSURE REQUIREMENTS OF SECTIONS 265.197,
265.228, 265.280, 265.310, 265.351, 265.381, AND 265.404 WILL BE MET;
(2) AN ESTIMATE OF THE MAXIMUM INVENTORY OF WASTES IN STORAGE OR IN
TREATMENT AT ANY GIVEN TIME DURING THE LIFE OF THE FACILITY;
(3) A DESCRIPTION OF THE STEPS NEEDED TO DECONTAMINATE FACILITY
EQUIPMENT DURING CLOSURE; AND
(4) A SCHEDULE FOR FINAL CLOSURE WHICH MUST INCLUDE, AS A MINIMUM,
THE ANTICIPATED DATE WHEN WASTES WILL NO LONGER BE RECEIVED, THE DATE
WHEN COMPLETION OF FINAL CLOSURE IS ANTICIPATED, AND INTERVENING
MILESTONE DATES WHICH WILL ALLOW TRACKING OF THE PROGRESS OF CLOSURE.
(FOR EXAMPLE, THE EXPECTED DATE FOR COMPLETING TREATMENT OR DISPOSAL OF
WASTE INVENTORY MUST BE INCLUDED, AS MUST THE PLANNED DATE FOR REMOVING
ANY RESIDUAL WASTES FROM STORAGE FACILITIES AND TREATMENT PROCESSES.)
(B) THE OWNER OR OPERATOR MAY AMEND HIS CLOSURE PLAN AT ANY TIME
DURING THE ACTIVE LIFE OF THE FACILITY. (THE ACTIVE LIFE OF THE
FACILITY IS THAT PERIOD DURING WHICH WASTES ARE PERIODICALLY RECEIVED.)
THE OWNER OR OPERATOR MUST AMEND HIS PLAN ANY TIME CHANGES IN OPERATING
PLANS OR FACILITY DESIGN AFFECT THE CLOSURE PLAN.
(C) THE OWNER OR OPERATOR MUST SUBMIT HIS CLOSURE PLAN TO THE
REGIONAL ADMINISTRATOR AT LEAST 180 DAYS BEFORE THE DATE HE EXPECTS TO
BEGIN CLOSURE. THE REGIONAL ADMINISTRATOR WILL MODIFY, APPROVE, OR
DISAPPROVE THE PLAN WITHIN 90 DAYS OF RECEIPT AND AFTER PROVIDING THE
OWNER OR OPERATOR AND THE AFFECTED PUBLIC THROUGH A NEWSPAPER NOTICE)
THE OPPORTUNITY TO SUBMIT WRITTEN COMMENTS. IF AN OWNER OR OPERATOR
PLANS TO BEGIN CLOSURE WITHIN 180 DAYS AFTER THE EFFECTIVE DATE OF THESE
REGULATIONS, HE MUST SUBMIT THE NECESSARY PLANS ON THE EFFECTIVE DATE OF
THESE REGULATIONS.
(A) WITHIN 90 DAYS AFTER RECEIVING THE FINAL VOLUME OF HAZARDOUS
WASTES, THE OWNER OR OPERATOR MUST TREAT ALL HAZARDOUS WASTES IN STORAGE
OR IN TREATMENT, OR REMOVE THEM FROM THE SITE, OR DISPOSE OF THEM
ON-SITE, IN ACCORDANCE WITH THE APPROVED CLOSURE PLAN.
(B) THE OWNER OR OPERATOR MUST COMPLETE CLOSURE ACTIVITIES IN
ACCORDANCE WITH THE APPROVED CLOSURE PLAN AND WITHIN SIX MONTHS AFTER
RECEIVING THE FINAL VOLUME OF WASTES. THE REGIONAL ADMINISTRATOR MAY
APPROVE A LONGER CLOSURE PERIOD UNDER SECTION 265.112(C) IF THE OWNER OR
OPERATOR CAN DEMONSTRATE THAT: (1) THE REQUIRED OR PLANNED CLOSURE
ACTIVITIES WILL, OF NECESSITY, TAKE HIM LONGER THAN SIX MONTHS TO
COMPLETE, AND (2) THAT HE HAS TAKEN ALL STEPS TO ELIMINATE ANY
SIGNIFICANT THREAT TO HUMAN HEALTH AND THE ENVIRONMENT FROM THE UNCLOSED
BUT INACTIVE FACILITY.
WHEN CLOSURE IS COMPLETED, ALL FACILITY EQUIPMENT AND STRUCTURES MUST
HAVE BEEN PROPERLY DISPOSED OF, OR DECONTAMINATED BY REMOVING ALL
HAZARDOUS WASTE AND RESIDUES.
WHEN CLOSURE IS COMPLETED, THE OWNER OR OPERATOR MUST SUBMIT TO THE
REGIONAL ADMINISTRATOR CERTIFICATION BOTH BY THE OWNER OR OPERATOR AND
BY AN INDEPENDENT REGISTERED PROFESSIONAL ENGINEER THAT THE FACILITY HAS
BEEN CLOSED IN ACCORDANCE WITH THE SPECIFICATIONS IN THE APPROVED
CLOSURE PLAN.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 090 OF 106
COSTLE D M ADMINISTRATOR
EPA
113454
REGULATION
(A) POST-CLOSURE CARE MUST CONSIST OF AT LEAST:
(1) GROUND-WATER MONITORING AND REPORTING IN ACCORDANCE WITH THE
REQUIREMENTS OF SUBPART F; AND
(2) MAINTENANCE OF MONITORING AND WASTE CONTAINMENT SYSTEMS AS
SPECIFIED IN SECTIONS 265.91, 265.223, 265.228, 265.280, AND 265.310,
WHERE APPLICABLE.
(B) THE REGIONAL ADMINISTRATOR MAY REQUIRE MAINTENANCE OF ANY OR ALL
OF THE SECURITY REQUIREMENTS OF SECTION 265.14 DURING THE POST-CLOSURE
PERIOD, WHEN:
(1) WASTES MAY REMAIN EXPOSED AFTER COMPLETION OF CLOSURE; OR
(2) SHORT TERM, INCIDENTAL ACCESS BY THE PUBLIC OR DOMESTIC LIVESTOCK
MAY POSE A HAZARD TO HUMAN HEALTH.
(3) POST-CLOSURE USE OF PROPERTY ON OR IN WHICH HAZARDOUS WASTE
REMAINS AFTER CLOSURE MUST NEVER BE ALLOWED TO DISTURB THE INTEGRITY OF
THE FINAL COVER, LINER(S), OR ANY OTHER COMPONENTS OF ANY CONTAINMENT
SYSTEM, OR THE FUNCTION OF THE FACILITY'S MONITORING SYSTEMS, UNLESS THE
OWNER OR OPERATOR CAN DEMONSTRATE TO THE REGIONAL ADMINISTRATOR, EITHER
IN THE POST-CLOSURE PLAN OR BY PETITION, THAT THE DISTURBANCE:
(1) IS NECESSARY TO THEPROPOSED USE OF THE PROPERTY, AND WILL NOT
INCREASE THE POTENTIAL HAZARD TO HUMAN HEALTH OR THE ENVIRONMENT; OR
(2) IS NECESSARY TO REDUCE A THREAT TO HUMAN HEALTH OR THE
ENVIRONMENT.
(D) THE OWNER OR OPERATOR OF A DISPOSAL FACILITY MUST PROVIDE
POST-CLOSURE CARE IN ACCORDANCE WITH THE APPROVED POST-CLOSURE PLAN FOR
AT LEAST 30 YEARS AFTER THE DATE OF COMPLETING CLOSURE. HOWEVER, THE
OWNER OR OPERATOR MAY PETITION THE REGIONAL ADMINISTRATOR TO ALLOW SOME
OR ALL OF THE REQUIREMENTS FOR POST CLOSURE CARE TO BE DISCONTINUED OR
ALTERED BEFORE THE END OF THE 30-YEAR PERIOD. THE PETITION MUST INCLUDE
EVIDENCE DEMONSTRATING THE SECURE NATURE OF THE FACILITY THAT MAKES
CONTINUING THE SPECIFIED POST-CLOSURE REQUIREMENTS(S) UNNECESSARY --
E.G., NO DETECTED LEAKS AND NONE LIKELY TO OCCUR, CHARACTERISTICS OF THE
WASTE, APPLICATION OF ADVANCED TECHNOLOGY, OR ALTERNATIVE DISPOSAL,
TREATMENT, OR RE-USE TECHNIQUES. ALTERNATELY, THE REGIONAL
ADMINISTRATOR MAY REQUIRE THE OWNER OR OPERATOR TO CONTINUE ONE OR MORE
OF THE POST-CLOSURE CARE AND MAINTENANCE REQUIREMENTS CONTAINED INTHE
FACILITY'S POST-CLOSURE PLAN FOR A SPECIFIED PERIOD OF TIME. THE
REGIONAL ADMINISTRATOR MAY DO THIS IF HE FINDS THERE HAS BEEN
NONCOMPLIANCE WITH ANY APPLICABLE STANDARDS OR REQUIREMENTS, OR THAT
SUCH CONTINUATION IS NECESSARY TO PROTECT HUMAN HEALTH OR THE
ENVIRONMENT. AT THE END OF THE SPECIFIED PERIOD OF TIME, THE REGIONAL
ADMINISTRATOR WILL DETERMINE WHETHER TO CONTINUE OR TERMINATE
POST-CLOSURE CARE AND MAINTENANCE AT THE FACILITY. ANYONE (A MEMBEROF
THE PUBLIC AS WELL AS THE OWNER OR OPERATOR) MAY PETITION THE REGIONAL
ADMINISTRATOR FOR AN EXTENSION OR REDUCTION OF THE POST-CLOSURE CARE
PERIOD BASED ON CAUSE. THESE PETITIONS WILL BE CONSIDERED BY THE
REGIONAL ADMINISTRATOR AT THE TIME THE POST-CLOSURE PLAN IS SUBMITTED
AND AT FIVE-YEAR INTERVALS AFTER THE COMPLETION OF CLOSURE.
OF PLAN.
(A) ON THE EFFECTIVE DATE OF THESE REGULATIONS, THE OWNER OR OPERATOR
OF A DISPOSAL FACILITY MUSTHAVE A WRITTEN POST-CLOSURE PLAN. HE MUST
KEEP THIS PLAN AT THE FACILITY. THIS PLAN MUST IDENTIFY THE ACTIVITIES
WHICH WILL BE CARRIED ON AFTER FINAL CLOSURE AND THE FREQUENCY OF THOSE
ACTIVITIES. THE POST-CLOSURE PLAN MUST INCLUDE AT LEAST:
(1) GROUND-WATER MONITORING ACTIVITIES AND FREQUENCIES AS SPECIFIED
IN SUBPART F FOR THE POST-CLOSURE PERIOD; AND
(2) MAINTENANCE ACTIVITIES AND FREQUENCIES TO ENSURE: (1) THE
INTEGRITY OF THE CAP AND FINAL COVEROR OTHER CONTAINMENT STRUCTURES
AS SPECIFIED IN SECTIONS 265.223, 265.228, 265.280, AND 265.310,
WHERE APPLICABLE, AND (2) THE FUNCTION OF THE FACILITY'S
MONITORING EQUIPMENT AS SPECIFIED IN SECTION 265.91.
(B) THE OWNER OR OPERATOR MAY AMEND HIS POST-CLOSURE PLAN AT ANY TIME
DURING THE ACTIVE LIFE OF THE DISPOSAL FACILITY OR DURING THE
POST-CLOSURE CARE PERIOD. THE OWNEROR OPERATOR MUST AMEND HIS PLAN ANY
TIME CHANGES IN OPERATING PLANS OR FACILITIES DESIGN AFFECT HIS
POST-CLOSURE PLAN.
(C) THE OWNER OR OPERATOR OF A DISPOSAL FACILITY MUST SUBMIT HIS
POST-CLOSURE PLAN TO THE REGIONAL ADMINISTRATOR AT LEAST 180 DAYS BEFORE
THE DATE HE EXPECTS TO BEGIN CLOSURE. THE REGIONAL ADMINISTRATOR WILL
MODIFY OR APPROVE THE PLAN WITHIN 90 DAYS OF RECEIPT AND AFTER PROVIDING
THE OWNER OR OPERATOR AND THE AFFECTED PUBLIC (THROUGH A NEWSPAPER
NOTICE) THE OPPORTUNITY TO SUBMIT WRITTEN COMMENTS. THE PLAN MAY BE
MODIFIED TO INCLUDE SECURITY EQUIPMENT MAINTENANCE UNDER SECTION
265.117(B). IF AN OWNER OR OPERATOR OF A DISPOSAL FACILITY PLANS TO
BEGIN CLOSURE WITHIN 180 DAYS AFTER THE EFFECTIVE DATE OF THESE
REGULATIONS, HE MUST SUBMIT THE NECESSARY PLANS ON THE EFFECTIVE DATE OF
THESE REGULATIONS. ANY AMENDMENTS TO THE PLAN UNDER PARAGRAPH (B) OF
THIS SECTION WHICH OCCUR AFTER APPROVAL OF THE PLAN MUST ALSO BE
APPROVED BY THE REGIONAL ADMINISTRATOR BEFORE THEY MAY BE IMPLEMENTED.
WITHIN 90 DAYS AFTER CLOSURE IS COMPLETED, THE OWNER OR OPERATOR OF A
DISPOSAL FACILITY MUST SUBMIT TO THE LOCAL LAND AUTHORITY AND TO THE
REGIONAL ADMINISTRATOR A SURVEY PLAT INDICATING THE LOCATION AND
DIMENSIONS OF LANDFILL CELLS OR OTHER DISPOSAL AREAS WITH RESPECT TO
PERMANENTLY SURVEYED BENCHMARKS. THIS PLAT MUST BE PREPARED AND
CERTIFIED BY A PROFESSIONAL LAND SURVEYOR. THE PLAT FILED WITH THE
LOCAL LAND AUTHORITY MUST CONTAIN A NOTE, PROMINENTLY DISPLAYED, WHICH
STATES THE OWNER'S OR OPERATOR'S OBLIGATION TO RESTRICT DISTURBANCE OF
THE SITE AS SPECIFIED IN SECTION 265.117(C). IN ADDITION, THE OWNER OR
OPERATOR MUST SUBMIT TO THE REGIONAL ADMINISTRATOR AND TO THE LOCAL LAND
AUTHORITY A RECORD OF THE TYPE, LOCATION, AND QUANTITY OF HAZARDOUS
WASTES DISPOSED OF WITHIN EACH CELL OR AREA OF THE FACILITY. FOR WASTES
DISPOSED OF BEFORE THESE REGULATIONS WERE PROMULGATED, THE OWNER OR
OPERATOR MUST IDENTIFY THE TYPE, LOCATION, AND QUANTITY OF THE WASTES TO
THE BEST OF HIS KNOWLEDGE AND IN ACCORDANCE WITH ANY RECORDS HE HAS
KEPT.
THE OWNER OF THE PROPERTY ON WHICH A DISPOSAL FACILITY IS LOCATED
MUST RECORD, IN ACCORDANCE WITH STATE LAW, A NOTATION ON THE DEED TO THE
FACILITY PROPERTY -- OR ON SOME OTHER INSTRUMENT WHICH IS NORMALLY
EXAMINED DURING TITLE SEARCH -- THAT WILL IN PERPETUITY NOTIFY ANY
POTENTIAL PURCHASER OF THE PROPERTY THAT: (1) THE LAND HAS BEEN USED TO
MANAGE HAZARDOUS WASTE, AND (2) ITS USE IS RESTRICTED UNDER SECTION
265.117(C).
(A) SECTION 265.142 APPLIES TO OWNERS AND OPERATORS OF ALL HAZARDOUS
WASTE FACILITIES, EXCEPT AS THIS SECTION OR SECTION 265.1 PROVIDE
OTHERWISE.
(B) SECTION 265.144 APPLIES ONLY TO OWNERS AND OPERATORS OF DISPOSAL
FACILITIES.
(C) STATES AND THE FEDERAL GOVERNMENT ARE EXEMPT FROM THE
REQUIREMENTS OF THIS SUBPART.
(A) ON THE EFFECTIVE DATE OF THESE REGULATIONS, EACH FACILITY OWNER
OR OPERATOR MUST HAVE A WRITTEN ESTIMATE OF THE COST OF CLOSING THE
FACILITY IN ACCORDANCE WITH THE REQUIREMENTS IN SECTIONS 265.111 -
265.115 AND APPLICABLE CLOSURE REQUIREMENTS IN SECTIONS 265.197,
265.228, 265.280, 265.310, 265.351, 265.381, AND 265.404.
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FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
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REGULATION
THE OWNER OR OPERATOR MUST KEEP THIS ESTIMATE, AND ALL SUBSEQUENT
ESTIMATES REQUIRED IN THIS SECTION, AT THE FACILITY. THE ESTIMATE MUST
EQUAL THE COST OF CLOSURE AT THE POINT IN THE FACILITY'S OPERATING LIFE
WHEN THE EXTENT AND MANNER OF ITS OPERATION WOULD MAKE CLOSURE THE MOST
EXPENSIVE, AS INDICATED BY ITS CLOSURE PLAN (SEE SECTION 265.112(A)).
(COMMENT: FOR EXAMPLE, THE CLOSURE COST ESTIMATE FOR A PARTICULAR
LANDFILL MAY BE FOR THE COST OF CLOSURE WHEN ITS ACTIVE DISPOSAL
OPERATIONS EXTEND OVER 20 ACRES, IF AT ALL OTHER TIMES THESE OPERATIONS
EXTEND OVER LESS THAN 20 ACRES. THE ESTIMATE WOULD NOT INCLUDE COSTS OF
PARTIAL CLOSURES THAT THE CLOSURE PLAN SCHEDULES BEFORE OR AFTER THE
TIME OF MAXIMUM CLOSURE COST.)
(B) THE OWNER OR OPERATOR MUST PREPARE A NEW CLOSURE COST ESTIMATE
WHENEVER A CHANGE IN THE CLOSURE PLAN AFFECTS THE COST OF CLOSURE.
(C) ON EACH ANNIVERSARY OF THE EFFECTIVE DATE OF THESE REGULATIONS,
THE OWNER OR OPERATOR MUST ADJUST THE LATEST CLOSURE COST ESTIMATE USING
AN INFLATION FACTOR DERIVED FROM THE ANNUAL IMPLICIT PRICE DEFLATOR FOR
GROSS NATIONAL PRODUCT AS PUBLISHED BY THE U.S. DEPARTMENT OF COMMERCE
IN ITS SURVEY OF CURRENT BUSINESS. THE INFLATION FACTOR MUST BE
CALCULATED BY DIVIDING THE LATEST PUBLISHED ANNUAL DEFLATOR BY THE
DEFLATOR FOR THE PREVIOUS YEAR. THE RESULT IS THE INFLATION FACTOR.
THE ADJUSTED CLOSURE COST ESTIMATE MUST EQUAL THE LATEST CLOSURE COST
ESTIMATE (SEE PARAGRAPH (B) OF THIS SECTION) TIMES THE INFLATION FACTOR.
(COMMENT: THE FOLLOWING IS A SAMPLE CALCULATION OF THE ADJUSTED
CLOSURE COST ESTIMATE: ASSUME THAT THE LATEST CLOSURE COST ESTIMATE FOR
A FACILITY IS $50,000, THE LATEST PUBLISHED ANNUAL DEFLATOR IS 152.05,
AND THE ANNUAL DEFLATOR FOR THE PREVIOUS YEAR IS 141.70. THE DEFLATORS
MAY BE ROUNDED TO THE NEAREST WHOLE NUMBER. DIVIDING 152 BY 142 GIVES
THE INFLATION FACTOR, 1.07. MULTIPLY $50,000 BY 1.07 FOR A PRODUCT OF
$53,500 -- THE ADJUSTED CLOSURE COST ESTIMATE.)
(A) ON THE EFFECTIVE DATE OF THESE REGULATIONS, THE OWNER OR OPERATOR
OF A DISPOSAL FACILITY MUST HAVE A WRITTEN ESTIMATE OF THE ANNUAL COST
OF POST-CLOSURE MONITORING AND MAINTENANCE OF THE FACILITY IN ACCORDANCE
WITH THE APPLICABLE POST-CLOSURE REGULATIONS IN SECTIONS 265.117 -
265.120, 265.228, 265.280, AND 265.310. THE OWNER OR OPERATOR MUST KEEP
THIS ESTIMATE, AND ALL SUBSEQUENT ESTIMATES REQUIRED IN THIS SECTION, AT
THE FACILITY.
(B) THE OWNER OR OPERATOR MUST PREPARE A NEW ANNUAL POST-CLOSURE COST
ESTIMATE WHENEVER A CHANGE IN THE POST-CLOSURE PLAN AFFECTS THE COST OF
POST-CLOSURE CARE (SEE SECTION 265.118(B)). THE LATEST POST-CLOSURE
COST ESTIMATE IS CALCULATED BY MULTIPLYING THELATEST ANNUAL POST-CLOSURE
COST ESTIMATE BY 30.
(C) ON EACH ANNIVERSARY OF THE EFFECTIVE DATE OF THESE REGULATIONS,
DURING THE OPERATING LIFE OF THE FACILITY, THE OWNER OR OPERATOR MUST
ADJUST THE LATEST POST-CLOSURE COST ESTIMATE USING THE INFLATION FACTOR
CALCULATED IN ACCORDANCE WITH SECTION 265.142(C). THE ADJUSTED
POST-CLOSURE COST ESTIMATE MUST EQUAL THE LATEST POST-CLOSURE COST
ESTIMATE (SEE PARAGRAPH (B) OF THIS SECTION) TIMES THE INFLATION FACTOR.
THE REGULATIONS IN THIS SUBPART APPLY TO OWNERS AND OPERATORS OF ALL
HAZARDOUS WASTE FACILTIEIS THAT STORE CONTAINERS OF HAZARDOUS WASTE,
EXCEPT AS SECTION 265.1 PROVIDES OTHERWISE.
IF A CONTAINER HOLDING HAZARDOUS WASTE IS NOT IN GOOD CONDITION, OR
IF IT BEGINS TO LEAK, THE OWNER OR OPERATOR MUST TRANSFER THE HAZARDOUS
WASTE FROM THIS CONTAINER TO A CONTAINER THAT IS IN GOOD CONDITION, OR
MANAGE THE WASTE IN SOME OTHER WAY THAT COMPLIES WITH THE REQUIREMENTS
OF THIS PART.
THE OWNER OR OPERATOR MUST USE A CONTAINER MADE OF OR LINED WITH
MATERIALS WHICH WILL NOT REACT WITH, AND ARE OTHERWISE COMPATIBLE WITH,
THE HAZARDOUS WASTE TO BE STORED, SO THAT THE ABILITY OF THE CONTAINER
TO CONTAIN THE WASTE IS NOT IMPAIRED.
(A) A CONTAINER HOLDING HAZARDOUS WASTE MUST ALWAYS BE CLOSED DURING
STORAGE, EXCEPT WHEN IT IS NECESSARY TO ADD OR REMOVE WASTE.
(B) A CONTAINER HOLDING HAZARDOUS WASTE MUST NOT BE OPENED, HANDLED,
OR STORED IN A MANNER WHICH MAY RUPTURE THE CONTAINER OR CAUSE IT TO
LEAK.
(COMMENT: A CONTAINER THAT IS A HAZARDOUS WASTE LISTED IN SECTION
261.33 OF THIS CHAPTER MUST BE MANAGED IN COMPLIANCE WITH THE
REGULATIONS OF THIS PART. RE-USE OF CONTAINERS IN TRANSPORTATION IS
GOVERNED BY U.S. DEPARTMENT OF TRANSPORTATION REGULATIONS, INCLUDING
THOSE SET FORTH IN 49 CFR 173.28).
THE OWNER OR OPERATOR MUST INSPECT AREAS WHERE CONTAINERS ARE STORED,
AT LEAST WEEKLY, LOOKING FOR LEAKS AND FOR DETERIORATION CAUSED BY
CORROSION OR OTHER FACTORS.
(COMMENT: SEE SECTION 265.171 FOR REMEDIAL ACTION REQUIRED IF
DETERIORATION OR LEAKS ARE DETECTED.)
CONTAINERS HOLDING IGNITABLE OR REACTIVE WASTE MUST BE LOCATED AT
LEAST 15 METERS (50 FEET) FROM THE FACILITY'S PROPERTY LINE.
(COMMENT: SEE SECTION 265.17 (A) FOR ADDITIONAL REQUIREMENTS.)
(A) INCOMPATIBLE WASTES, OR INCOMPATIBLE WASTES AND MATERIALS, (SEE
APPENDIX V FOR EXAMPLES) MUST NOT BE PLACED IN THE SAME CONTAINER,
UNLESS SECTION 265.17(B) IS COMPLIED WITH.
(B) HAZARDOUS WASTE MUST NOT BE PLACED IN AN UNWASHED CONTAINER THAT
PREVIOUSLY HELD AN INCOMPATIBLE WASTE OR MATERIAL (SEE APPENDIX V FOR
EXAMPLES), UNLESS SECTION 265.17(B) IS COMPLIED WITH.
(C) A STORAGE CONTAINER HOLDING A HAZARDOUS WASTE THAT IS COMPATIBLE
WITH ANY WASTE OR OTHERMATERIALS STORED NEARBY IN OTHER CONTAINERS,
PILES, OPEN TANKS, OR SURFACE IMPOUNDMENTS MUST BE SEPARATED FROM THE
OTHER MATERIALS OR PROTECTED FROM THEM BY MEANS OF A DIKE, BERM, WALL,
OR OTHER DEVICE.
(COMMENT: THE PURPOSE OF THIS IS TO PREVENT FIRES, EXPLOSIONS,
GASEOUS EMISSIONS, LEACHING, OR OTHER DISCHARGE OF HAZARDOUS WASTE
CONSTITUENTS WHICH COULD RESULT FROM THE MIXING OF INCOMPATIBLE WASTES
OR MATERIALS IF CONTAINERS BREAK OR LEAK.)
THE REGULATIONS IN THIS SUBPART APPLY TO OWNERS AND OPERATORS OF
FACILITIES THAT USE TANKS TO TREAT OR STORE HAZARDOUS WASTE, EXCEPT AS
SECTION 265.1 PROVIDES OTHERWISE.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 092 OF 106
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REGULATION
(A) TREATMENT OR STORAGE OF HAZARDOUS WASTE IN TANKS MUST COMPLY WITH
SECTION 265.17 (B).
(B) HAZARDOUS WASTES OR TREATMENT REAGENTS MUST NOT BE PLACED IN A
TANK IF THEY COULD CAUSE THE TANK OR ITS INNER LINER TO RUPTURE, LEAK,
CORRODE, OR OTHERWISE FAIL BEFORE THE END OF ITS INTENDED LIFE.
(C) UNCOVERED TANKS MUST BE OPERATED TO ENSURE AT LEAST 60
CENTIMETERS (2 FEET) OF FREEBOARD, UNLESS THE TANK IS EQUIPPED WITH A
CONTAINMENT STRUCTURE (E.G., DIKE OR TRENCH), A DRAINAGE CONTROL SYSTEM,
OR A DIVERSION STRUCTURE (E.G., STANDBY TANK) WITH A CAPACITY THAT
EQUALS OR EXCEEDS THE VOLUME OF THE TOP 60 CENTIMETERS (2 FEET) OF THE
TANK.
(D) WHERE HAZARDOUS WASTE IS CONTINUOUSLY FED INTO A TANK, THE TANK
MUST BE EQUIPPED WITH A MEANS TO STOP THIS INFLOW (E.G., A WASTE FEED
CUTOFF SYSTEM OR BY-PASS SYSTEM TO A STANDY-BY TANK).
(COMMENT: THESE SYSTEMS ARE INTENDED TO BE USED IN THE EVENT OF A
LEAK OR OVERFLOW FROM THE TANK DUE TO A SYSTEM FAILURE (E.G., A
MALFUNCTION IN THE TREATMENTPROCESS, A CRACK IN THE TANK, ETC.).
(A) IN ADDITION TO THE WASTE ANALYSIS REQUIRED BY SECTION 265.13,
WHENEVER A TANK IS TO BE USED TO:
(1) CHEMICALLY TREAT OR STORE A HAZARDOUS WASTE WHICH IS
SUBSTANTIALLY DIFFERENT FROM WASTE PREVIOUSLY TREATED OR STORED IN THAT
TANK; OR
(2) CHEMICALLY TREAT HAZARDOUS WASTE WITH A SUBSTANTIALLY DIFFERENT
PROCESS THAN ANY PREVIOUSLY USED IN THAT TANK; THE OWNER OR OPERATOR
MUST, BEFORE TREATING OR STORING THE DIFFERENT WASTE OR USING THE
DIFFERENT PROCESS:
(I) CONDUCT WASTE ANALYSES AND TRIAL TREATMENT OR STORAGE TESTS
(E.G., BENCH SCALE OR PILOT PLANT SCALE TESTS); OR
(II) OBTAIN WRITTEN, DOCUMENTED INFORMATION ON SIMILAR STORAGE OR
TREATMENT OF SIMILAR WASTE UNDER SIMILAR OPERATING CONDITIONS; TO SHOW
THAT THIS PROPOSED TREATMENT OR STORAGE WILL MEET ALL APPLICABLE
REQUIREMENTS OF SECTION 265.192(A) AND (B).
(COMMENT: AS REQUIRED BY SECTION 265.13, THE WASTE ANALYSIS PLAN
MUST INCLUDE ANALYSES NEEDED TO COMPLY WITH SECTIONS 265.198 AND
265.199. AS REQUIRED BY SECTION 265.73, THE OWNER OR OPERATOR MUST
PLACE THE RESULTS FROM EACH WASTE ANALYSIS AND TRIAL TEST, OR THE
DOCUMENTED INFORMATION, IN THE OPERATING RECORD OF THE FACILITY.)
(A) THE OWNER OR OPERATOR OF A TANK MUST INSPECT, WHERE PRESENT:
(1) DISCHARGE CONTROL EQUIPMENT (E.G., WASTE FEED CUT-OFF SYSTEMS,
BY-PASS SYSTEMS, AND DRAINAGE SYSTEMS), AT LEAST ONCE EACH OPERATING
DAY, TO ENSURE THAT IT IS IN GOOD WORKING ORDER;
(2) DATA GATHERED FROM MONITORING EQUIPMENT (E.G., PRESSURE
AND TEMPERATURE GAUGES), AT LEAST ONCE EACH OPERATING DAY, TO
ENSURE THAT THE TANK IS BEING OPERATED ACCORDING TO ITS DESIGN;
(3) THE LEVEL OF WASTE IN THE TANK, AT LEAST ONCE EACH OPERATING DAY,
TO ENSURE COMPLIANCE WITH SECTION 265.192(C);
(4) THE CONSTRUCTION MATERIALS OF THE TANK, AT LEAST WEEKLY, TO
DETECT CORROSION OR LEAKING OF FIXTURES OR SEAMS; AND
(5) THE CONSTRUCTION MATERIALS OF, AND THE AREA IMMEDIATELY
SURROUNDING, DISCHARGE CONFINEMENT STRUCTURES (E.G., DIKES), AT LEAST
WEEKLY, TO DETECT EROSION OR OBVIOUS SIGNS OF LEAKAGE (E.G., WET SPOTS
OR DEAD VEGETATION).
(COMMENT: AS REQUIRED BY SECTION 265.15(C), THE OWNER OR OPERATOR
MUST REMEDY ANY DETERIORATION OR MALFUNCTION HE FINDS.)
AT CLOSURE, ALL HAZARDOUS WASTE AND HAZARDOUS WASTE RESIDUES MUST BE
REMOVED FROM TANKS, DISCHARGE CONTROL EQUIPMENT, AND DISCHARGE
CONFINEMENT STRUCTURES.
(COMMENT: AT CLOSURE, AS THROUGHOUT THE OPERATING PERIOD, UNLESS THE
OWNER OR OPERATOR CAN DEMONSTRATE, IN ACCORDANCE WITH SECTION 261.3(C)
OR (D) OF THIS CHAPTER, THAT ANY SOLID WASTE REMOVED FROM HIS TANK IS
NOT A HAZARDOUS WASTE, THE OWNER OR OPERATOR BECOMES A GENERATOR OF
HAZARDOUS WASTE AND MUST MANAGE IT IN ACCORDANCE WITH ALL APPLICABLE
REQUIREMENTS OF PARTS 263, 263, AND 265 OF THIS CHAPTER.)
(A) IGNITABLE OR REACTIVE WASTE MUST NOT BE PLACED IN A TANK, UNLESS:
(1) THE WASTE IS TREATED, RENDERED, OR MIXED BEFORE OR IMMEDIATELY
AFTER PLACEMENT IN THE TANK SO THAT (I) THE RESULTING WASTE, MIXTURE, OR
DISSOLUTION OF MATERIAL NO LONGER MEETS THE DEFINITION OF IGNITABLE OR
REACTIVE WASTE UNDER SECTIONS 261.21 OR 261.23 OF THIS CHAPTER, AND (II)
SECTION 265.17(B) IS COMPLIED WITH; OR
(2) THE WASTE IS STORED OR TREATED IN SUCH A WAY THAT IT IS PROTECTED
FROM ANY MATERIAL OR CONDITIONS WHICH MAY CAUSE THE WASTE TO IGNITE OR
REACT; OR
(3) THE TANK IS USED SOLELY FOR EMERGENCIES.
(B) THE OWNER OR OPERATOR OF A FACILITY WHICH TREATS OR STORES
IGNITABLE OR REACTIVE WASTE IN COVERED TANKS MUST COMPLY WITH THE
NATIONAL FIRE PROTECTION ASSOCIATION'S (NFPA'S) BUFFER ZONE REQUIREMENTS
FOR TANKS, CONTAINED IN TABLES 2-1 THROUGH 2-6 OF THE "FLAMMABLE AND
COMBUSTIBLE CODE -- 1977".
(COMMENT: SEE SECTION 265.17(A) FOR ADDITIONAL REQUIREMENTS.)
(A) INCOMPATIBLE WASTES, OR INCOMPATIBLE WASTES AND MATERIALS, (SEE
APPENDIX V FOR EXAMPLES) MUST NOT BE PLACED IN THE SAME TANK, UNLESS
SECTION 265.17(B) IS COMPLIED WITH.
THE REGULATIONS IN THIS SUBPART APPLY TO OWNERS AND OPERATORS OF
FACILITIES THAT USE SURFACE IMPOUNDMENTS TO TREAT, STORE, OR DISPOSE OF
HAZARDOUS WASTE, EXCEPT AS SECTION 265.1 PROVIDES OTHERWISE.
A SURFACE IMPOUNDMENT MUST MAINTAIN ENOUGH FREEBOARD TO PREVENT ANY
OVERTOPPING OF THE DIKE BY OVERFILLING, WAVE ACTION, OR STORM. THERE
MUST BE AT LEAST 60 CENTIMETERS (2 FEET) OF FREEBOARD.
(COMMENT: ANY POINT SOURCE DISCHARGE FROM A SURFACE IMPOUNDMENT TO
WATERS OF THE UNITED STATES IS SUBJECT TO THE REQUIREMENTS OF SECTION
402 OF THE CLEAN WATER ACT, AS AMENDED. SPILLS MAY BE SUBJECT TO
SECTION 311 OF THAT ACT.)
ALL EARTHEN DIKES MUST HAVE A PROTECTIVE COVER, SUCH AS GRASS, SHALE,
OR ROCK, TO MINIMIZE WIND AND WATER EROSION AND TO PRESERVE THEIR
STRUCTURAL INTEGRITY.
(A) IN ADDITION TO THE WASTE ANALYSES REQUIRED BY SECTION 265.1
265.13, WHENEVER A SURFACE IMPOUNDMENT IS TO BE USED TO:
(1) CHEMICALLY TREAT A HAZARDOUS WASTE WHICH IS SUBSTANTIALLY
DIFFERENT FROM WASTE PREVIOUSLY TREATED IN THAT IMPOUNDMENT; OR.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 093 OF 106
COSTLE D M ADMINISTRATOR
EPA
113457
REGULATION
(2) CHEMICALLY TREAT HAZARDOUS WASTE WITH A SUBSTANTIALLY DIFFERENT
PROCESS THAN ANY PREVIOUSLY USED IN THAT IMPOUNDMENT; THE OWNER OR
OPERATOR MUST, BEFORE TREATING THE DIFFERENT WASTE OR USING THE
DIFFERENT PROCESS:
(I) CONDUCT WASTE ANALYSES AND TRIAL TREATMENT TESTS (E.G., BENCH
SCALE OR PILOT PLANT SCALE TESTS); OR
(II) OBTAIN WRITTEN, DOCUMENTED INFORMATION ON SIMILAR TREATMENT OF
SIMILAR WASTE UNDER SIMILAR OPERATING CONDITIONS; TO SHOW THAT THIS
TREATMENT WILL COMPLY WITH SECTION 265.17(B).
(COMMENT: AS REQUIRED BY SECTION 265.13, THE WASTE ANALYSIS PLAN
MUST INCLUDE ANALYSES NEEDED TO COMPLY WITH SECTIONS 265.229 AND
265.230. AS REQUIRED BY SECTION 265.73, THE OWNER OR OPERATOR MUST
PLACE THE RESULTS FROM EACH WASTE ANALYSIS AND TRIAL TEST, OR THE
DOCUMENTED INFORMATION, IN THE OPERATING RECORD OF THE FACILITY.)
(A) THE OWNER OR OPERATOR MUST INSPECT:
(1) THE FREEBOARD LEVEL AT LEAST ONCE EACH OPERATING DAY TO ENSURE
COMPLIANCE WITH SECTION 265.222, AND
(2) THE SURFACE IMPOUNDMENT, INCLUDING DIKES AND VEGETATION
SURROUNDING THE DIKE, AT LEAST ONCE A WEEK TO DETECT ANY LEAKS
DETERIORATION, OR FAILURES IN THE IMPOUNDMENT.
(COMMENT: AS REQUIRED BY SECTION 265.15(C), THE OWNER OR OPERATOR
MUST REMEDY ANY DETERIORATION OR MALFUNCTION HE FINDS.)
(A) AT CLOSURE, THE OWNER OR OPERATOR MAY ELECT TO REMOVE FROM THE
IMPOUNDMENT:
(1) STANDLING LIQUIDS;
(2) WASTE AND WASTE RESIDUES;
(3) THE LINER, IF ANY; AND
(4) UNDERLYING AND SURROUNDING CONTAMINATED SOIL.
(B) IF THE OWNER OR OPERATOR REMOVES ALL THE IMPOUNDMENT MATERIALS IN
PARAGRAPH (A) OF THIS SECTION, OR CAN DEMONSTRATE UNDER SECTION 261.3(C)
AND (D) OF THIS CHAPTER THAT NONE OF THE MATERIALS LISTED IN PARAGRAPH
(A) OF THIS SECTION REMAINING AT ANY STAGE OF REMOVAL ARE HAZARDOUS
WASTES, THE IMPOUNDMENT IS NOT FURTHER SUBJECT TO THE REQUIREMENTS OF
THIS PART.
(COMMENT: AT CLOSURE, AS THROUGHOUT THE OPERATING PERIOD, UNLESS THE
OWNER OR OPERATOR CAN DEMONSTRATE, IN ACCORDANCE WITH SECTION 261.3 (C)
OR (D) OF THIS CHAPTER, THAT ANY SOLID WASTE REMOVED FROM THE SURFACE
IMPOUNDMENT IS NOT A HAZARDOUS WASTE, AND MUST MANAGE IT IN ACCORDANCE
WITH ALL APPLICABLE REQUIREMENTS OF PARTS 262, 263, AND 265 OF THIS
CHAPTER. THE SURFACE IMPOUNDMENT MAY BE SUBJECT TO PART 257 OF THIS
CHAPTER EVEN IF IT IS NOT SUBJECT TO THIS PART.)
(C) IF THE OWNER OR OPERATOR DOES NOT REMOVE ALL THE IMPOUNDMENT
MATERIALS IN PARAGRAPH (A) OF THIS SECTION, OR DOES NOT MAKE THE
DEMONSTRATION IN PARAGRAPH (B) OF THIS SECTION, HE MUST CLOSE THE
IMPOUNDMENT AND PROVIDE POST-CLOSURE CARE AS FOR A LANDFILL UNDER
SUBPART G AND SECTION 265.310. IF NECESSARY TO SUPPORT THE FINAL COVER
SPECIFIED IN THE APPROVED CLOSURE PLAN, THE OWNER OR OPERATOR MUST TREAT
REMAINING LIQUIDS, RESIDUES AND SOILS BY REMOVAL OF LIQUIDS, DRYING, OR
OTHER MEANS.
(COMMENT: THE CLOSURE REQUIREMENTS UNDER SECTION 265.310 WILL VARY
WITH THE AMOUNT AND NATURE OF THE RESIDUE REMAINING, IF ANY, AND THE
DEGREE OF CONTAMINATION OF THE UNDERLYING AND SURROUNDING SOIL. SECTION
265.117(D) ALLOWS THE REGIONAL ADMINISTRATOR TO VARY POST-CLOSURE CAR
REQUIREMENTS.)
(A) IGNITABLE OR REACTIVE WASTE MUST NOT BE PLACED IN A SURFACE
IMPOUNDMENT, UNLESS;
(1) THE WASTE IS TREATED, RENDERED, OR MIXED BEFORE OR IMMEDIATELY
AFTER PLACEMENT IN THE IMPOUNDMENT SO THAT (I) THE RESULTING WASTE,
MIXTURE, OR DISSOLUTION OFMATERIAL NO LONGER MEETS THE DEFINITION OF
IGNITABLE OR REACTIVE WASTE UNDER SECTIONS 261.21 OR 261.23 OF THIS
CHAPTER, AND (II) SECTION 265.17 (B) IS COMPLIED WITH; OR
(2) THE SURFACE IMPOUNDMENT IS USED SOLELY FOR EMERGENCIES.
INCOMPATIBLE WASTES, OR INCOMPATIBLE WASTES AND MATERIALS, (SEE
APPENDIX V FOR EXAMPLES) MUST NOT BE PLACED IN THE SAME SURFACE
IMPOUNDMENT, UNLESS SECTIONS 265.17 (B) IS COMPLIED WITH.
THE REGULATIONS IN THIS SUBPART APPLY TO OWNERS AND OPERATORS OF
FACILITIES THAT TREAT OR STORE HAZARDOUS WASTE IN PILES, EXCEPT AS
SECTION 265.1 PROVIDES OTHERWISE. ALTERNATIVELY, A PILE OF HAZARDOUS
WASTE MAY BE MANAGED AS A LANDFILL UNDER SUBPART N.
THE OWNER OR OPERATOR OF A PILE CONTAINING HAZARDOUS WASTE WHICH
COULD BE SUBJECT TO DISPERSAL BY WIND MUST COVER OR OTHERWISE MANAGE THE
PILE SO THAT WIND DISPERSAL IS CONTROLLED.
IN ADDITION TO THE WASTE ANALYSES REQUIRED BY SECTION 265.13, THE
OWNER OR OPERATOR MUST ANALYZE A REPRESENTATIVE SAMPLE OF WASTE FROM
EACH INCOMING MOVEMENT BEFORE ADDING THE WASTE TO ANY EXISTING PILE,
UNLESS (1) THE ONLY WASTES THE FACILITY RECEIVES WHICH ARE AMENABLE TO
PILING ARE COMPATIBLE WITH EACH OTHER, OR (2) THE WASTE RECEIVED IS
COMPATIBLE WITH THE WASTE IN THE PILE TO WHICH IT IS TO BE ADDED. THE
ANALYSIS CONDUCTED MUST BE CAPABLE OF DIFFERENTIATING BETWEEN THE TYPES
OF HAZARDOUS WASTE THE OWNER OR OPERATOR PLACES IN PILES, SO THATMIXING
OF INCOMPATIBLE WASTE DOES NOT INADVERTENTLY OCCUR. THE ANALYSIS MUST
INCLUDE A VISUAL COMPARISON OF COLOR AND TEXTURE.
(COMMENT: AS REQUIRED BY SECTION 265.13, THE WASTE ANALYSIS PLAN
MUST INCLUDE ANALYSES NEEDED TO COMPLY WITH SECTIONS 265.256 AND
265.257. AS REQUIRED BY SECTION 265.73, THE OWNER OR OPERATOR MUST
PLACE THE RESULTS OF THIS ANALYSIS IN THE OPERATING RECORD OF THE
FACILITY.)
IF LEACHATE OR RUN-OFF FROM A PILE IS A HAZARDOUS WASTE, THEN EITHER:
(A) THE PILE MUST BE PLACED ON AN IMPERMEABLE BASE THAT IS COMPATIBLE
WITH THE WASTE UNDER THE CONDITIONS OF TREATMENT OR STORAGE, RUN-ON MUST
BE DIVERTED AWAY FROM THE PILE, AND ANY LEACHATE AND RUN-OFF FROM THE
PILE MUST BE COLLECTED AND MANAGED AS A HAZARDOUS WASTE; OR
(B) (1) THE PILE MUST BE PROTECTED FROM PRECIPITATION AND RUN-ON BY
SOME OTHER MEANS; AND
(2) NO LIQUIDS OR WASTES CONTAINING FREE LIQUIDS MAY BE PLACED IN THE
PILE.
(COMMENT: IF COLLECTED LEACHATE OR RUN-OFF IS DISCHARGED THROUGH A
POINT SOURCE TO WATERS OF THE UNITED STATES, IT IS SUBJECT TO THE
REQUIREMENTS OF SECTION 402 OF THE CLEAN WATER ACT, AS AMENDED.)
(C) THE DATE FOR COMPLIANCE WITH PARAGRAPHS (A) AND (B) (1) OF THIS
SECTION IS 12 MONTHS AFTER THE EFFECTIVE DATE OF THIS PART.
(A) IGNITABLE OR REACTIVE WASTES MUST NOT BE PLACED IN A PILE,
UNLESS:
(1) ADDITION OF THE WASTE TO AN EXISTING PILE (I) RESULTS IN THE
WASTE OR MIXTURE NO LONGER MEETING THE DEFINITION OF IGNITABLE OR
REACTIVE WASTE UNDER SECTIONS 261.21 OR 261.23 OF THIS CHAPTER, AND (II)
COMPLIES WITH SECTION 265.17 (B); OR
(2) THE WASTE IS MANAGED IN SUCH A WAY THAT IT IS PROTECTED FROM ANY
MATERIAL OR CONDITIONS WHICH MAY CAUSE IT TO IGNITE OR REACT.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 094 OF 106
COSTLE D M ADMINISTRATOR
EPA
113458
REGULATION
(A) INCOMPATIBLE WASTES, OR INCOMPATIBLE WASTES AND MATERIALS, (SEE
APPENDIX V FOR EXAMPLES) MUST NOT BE PLACED IN THE SAME PILE, UNLESS
SECTION 265.17 (B) IS COMPLIED WITH.
(B) A PILE OF HAZARDOUS WASTE THAT IS INCOMPATIBLE WITH ANY WASTE OR
OTHER MATERIAL STORED NEARBY IN OTHER CONTAINERS, PILES, OPEN TANKS, OR
SURFACE IMPOUNDMENTS MUSTBE SEPARATED FROM THE OTHER MATERIALS, OR
PROTECTED FROM THEM BY MEANS OF A DIKE, BERM, WALL, OR OTHERDEVICE.
(COMMENT: THE PURPOSE OF THIS IS TO PREVENT FIRES, EXPLOSIONS,
GASEOUS EMISSIONS, LEACHING, OR OTHER DISCHARGE OF HAZARDOUS WASTE OR
HAZARDOUS WASTE CONSTITUENTS WHICH COULD RESULT FROM THE CONTACT OR
MIXING OF INCOMPATIBLE WASTES OR MATERIALS.)
(C) HAZARDOUS WASTE MUST NOT BE PILED ON THE SAME AREA WHERE
INCOMPATIBLE WASTES OR MATERIALS WERE PREVIOUSLY PILED, UNLESS THAT AREA
HAS BEEN DECONTAMINATED SUFFICIENTLY TO ENSURE COMPLIANCE WITH SECTION
265.17 (B).
THE REGULATIONS IN THIS SUBPART APPLY TO OWNERS AND OPERATORS OF
HAZARDOUS WASTE LAND TREATMENT FACILITIES, EXCEPT AS SECTION 265.1
PROVIDES OTHERWISE.
(A) HAZARDOUS WASTE MUST NOT BE PLACED IN OR ON A LAND TREATMENT
FACILITY UNLESS THE WASTE CAN BE MADE LESS HAZARDOUS OR NON-HAZARDOUS BY
BIOLOGICAL DEGRADATION OR CHEMICAL REACTIONS OCCURRING IN OR ON THE
SOIL.
(B) RUN-ON MUST BE DIVERTED AWAY FROM THE ACTIVE PORTIONS OF A LAND
TREATMENT FACILITY.
(C) RUN-OFF FROM ACTIVE PORTIONS OF A LAND TREATMENT FACILITY MUST BE
COLLECTED.
(COMMENT: IF THE COLLECTED RUN-OFF IS A HAZARDOUS WASTE UNDER PART
261 OF THIS CHAPTER, IT MUST BE MANAGED AS A HAZARDOUS WASTE IN
ACCORDANCE WITH ALL APPLICABLE REQUIREMENTS OF PARTS 262, 263, AND 265
OF THIS CHAPTER. IF THE COLLECTED RUN-OFF IS DISCHARGED THROUGH A POINT
SOURCE TO WATERS OF THE UNITED STATES, IT IS SUBJECT TO THE REQUIREMENTS
OF SECTION 402 OF THE CLEAN WATER ACT, AS AMENDED.)
(D) THE DATE FOR COMPLIANCE WITH PARAGRAPHS (B) AND (C) OF THIS
SECTION IS 12 MONTHS AFTER THE EFFECTIVE DATE OF THIS PART.
IN ADDITION TO THE WASTE ANALYSES REQUIRED BY SECTION 265.13, BEFORE
PLACING A HAZARDOUS WASTE IN OR ON A LAND TREATMENT FACILITY, THE
OWNEROR OPERATOR MUST:
(A) DETERMINE THE CONCENTRATIONS IN THE WASTE OF ANY SUBSTANCES WHICH
EXCEED THE MAXIMUM CONCENTRATIONS CONTAINED IN TABLE I OF SECTION 261.24
OF THIS CHAPTER THAT CAUSE A WASTE TO EXHIBIT THE EP TOXICITY
CHARACTERISTIC;
(B) FOR ANY WASTE LISTED IN PART 261, SUBPART D, OF THIS CHAPTER,
DETERMINE THE CONCENTRATIONS OF ANY SUBSTANCES WHICH CAUSED THE WASTE TO
BE LISTED AS A HAZARDOUS WASTE; AND
(C) IF FOOD CHAIN CROPS ARE GROWN, DETERMINE THE CONCENTRATIONS IN
THE WASTE OF EACH OF THE FOLLOWING CONSTITUENTS: ARSENIC, CADMIUM,
LEAD, AND MERCURY, UNLESS THE OWNER OR OPERATOR HAS WRITTEN, DOCUMENTED
DATA THAT SHOW THAT THE CONSTITUENT IS NOT PRESENT.
(COMMENT: PART 261 OF THIS CHAPTER SPECIFIES THE SUBSTANCES FOR
WHICH A WASTE IS LISTED AS A HAZARDOUS WASTE. AS REQUIRED BY SECTION
265.13, THE WASTE ANALYSIS PLAN MUST INCLUDE ANALYSES NEEDED TO COMPLY
WITH SECTIONS 265.281 AND 265.282. AS REQUIRED BY SECTION 265.73, THE
OWNER OR OPERATOR MUST PLACE THE RESULTS FROM EACH WASTE ANALYSIS, OR
THE DOCUMENTED INFORMATION, IN THE OPERATING RECORD OF THE FACILITY.)
(A) AN OWNER OR OPERATOR OF A HAZARDOUS WASTE LAND TREATMENT FACILITY
ON WHICH FOOD CHAIN CROPS ARE BEING GROWN, OR HAVE BEEN GROWN AND WILL
BE GROWN IN THE FUTURE, MUST NOTIFY THE REGIONAL ADMINISTRATOR WITHIN 60
DAYS AFTER THE EFFECTIVE DATE OF THIS PART.
(COMMENT: THE GROWTH OF FOOD CHAIN CROPS AT A FACILITY WHICH HAS
NEVER BEFORE BEEN USED FOR THIS PURPOSE IS A SIGNIFICANT CHANGE IN
PROCESS UNDER SECTION 122.23 (C) (3) OF THIS CHAPTER. OWNERS OR
OPERATORS OF SUCH LAND TREATMENT FACILITIES WHO PROPOSE TO GROW FOOD
CHAIN CROPS AFTER THE EFFECTIVE DATE OF THIS PART MUST COMPLY WITH
SECTION 122.23 (C) (3) OF THIS CHAPTER.)
(B) (1) FOOD CHAIN CROPS MUST NOT BE GROWN ON THE TREATED AREA OF A
HAZARDOUS WASTE LAND TREATMENT FACILITY UNLESS THE OWNER OR OPERATOR CAN
DEMONSTRATE, BASED ON FIELD TESTING, THAT ANY ARSENIC, LEAD, MERCURY, OR
OTHER CONSTITUENTS IDENTIFIED UNDER SECTION 265.273(B):
(I) WILL NOT BE TRANSFERRED TO THE FOOD PORTION OF THE CROP BY PLANT
UPTAKE OR DIRECT CONTACT, AND WILL NOT OTHERWISE BE INGESTED BY FOOD
CHAIN ANIMALS (E.G., BY GRAZING); OR
(II) WILL NOT OCCUR IN GREATER CONCENTRATIONS IN THE CROPS GROWN ON
THE LAND TREATMENT FACILITY THAN IN THE SAME CROPS GROWN ON UNTREATED
SOILS UNDER SIMILAR CONDITIONS IN THE SAME REGION.
(2) THE INFORMATION NECESSARY TO MAKE THE DEMONSTRATION REQUIRED BY
PARAGRAPH (B) (1) OF THIS SECTION MUST BE KEPT AT THE FACILITY AND MUST,
AT A MINIMUM:
(I) BE BASED ON TESTS FOR THE SPECIFIC WASTE AND APPLICATION RATES
BEING USED AT THE FACILITY; AND
(II) INCLUDE DESCRIPTIONS OF CROP AND SOIL CHARACTERISTICS, SAMPLE
SELECTION CRITERIA, SAMPLE SIZE DETERMINATION, ANALYTICAL METHODS, AND
STATISTICAL PROCEDURES.
(C) FOOD CHAIN CROPS MUST NOT BE GROWN ON A LAND TREATMENT FACILITY
RECEIVING WASTE THAT CONTAINS CADMIUM UNLESS ALL REQUIREMENTS OF
PARAGRAPH (C)(1)(I) THROUGH (III) OF THIS SECTION OR ALL REQUIREMENTS OF
PARAGRAPH (C)(2)(I) THROUGH (IV) OF THIS SECTION ARE MET.
(1)(I) THE PH OF THE WASTE AND SOIL MIXTURE IS 6.5 OR GREATER AT THE
TIME OF EACH WASTE APPLICATION, EXCEPT FOR WASTE CONTAINING CADMIUM AT
CONCENTRATIONS OF 2 MG/KG (DRY WEIGHT) OR LESS;
(II) THE ANNUAL APPLICATION OF CADMIUM FROM WASTE DOES NOT EXCEED 0.5
KILOGRAMS PER HECTARE (KG/HA) ON LAND USED FOR PRODUCTION OF TOBACCO,
LEAFY VEGETABLES, OR ROOT CROPS GROWN FOR HUMAN CONSUMPTION. FOR OTHER
FOOD CHAIN CROPS, THE ANNUAL CADMIUM APPLICATION RATE DOES NOT EXCEED:
TABLE OMITTED)
(III) THE CUMULATIVE APPLICATION OF CADMIUM FROM WASTE DOES NOT
EXCEED THE LEVELS IN EITHER PARAGRAPH (C)(1) (III)(A) OF THIS SECTION OR
PARAGRAPH (C)(1) (III)(B) OF THIS SECTION.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 095 OF 106
COSTLE D M ADMINISTRATOR
EPA
113459
REGULATION
TABLE OMITTED
(B) FOR SOILS WITH A BACKGROUND PH OF LESS THAN 6.5, THE CUMULATIVE
CADMIUM APPLICATION RATE DOES NOT EXCEED THE LEVELS BELOW: PROVIDED,
THAT THE PH OF THE WASTE AND SOIL MIXTURE IS ADJUSTED TO AND MAINTAINED
AT 6.5 OR GREATER WHENEVER FOOD CHAIN CROPS ARE GROWN.
TABLE OMITTED
(2)(I) THE ONLY FOOD CHAIN CROP PRODUCED IS ANIMAL FEED.
(II) THE PH OF THE WASTE AND SOIL MIXTURE IS 6.5 OR GREATER AT THE
TIME THE CROP IS PLANTED, WHICHEVER OCCURS LATER, AND THIS PH LEVEL IS
MAINTAINED WHENEVER FOOD CHAIN CROPS ARE GROWN.
(III) THERE IS A FACILITY OPERATING PLAN WHICH DEMONSTRATES HOW THE
ANIMAL FEED WILL BE DISTRIBUTED TO PRECLUDE INGESTION BY HUMANS. THE
FACILITY OPERATING PLAN DESCRIBES THE MEASURES TO BE TAKEN TO SAFEGUARD
AGAINST POSSIBLE HEALTH HAZARDS FROM CADMIUM ENTERING THE FOOD CHAIN,
WHICH MAY RESULT FROM ALTERNATIVE LAND USES.
(IV) FUTURE PROPERTY OWNERS ARE NOTIFIED BY A STIPULATION IN THE LAND
RECORD OR PROPERTY DEED WHICH STATES THAT THE PROPERTY HAS RECEIVED
WASTE AT HIGH CADMIUM APPLICATION RATES AND THAT FOOD CHAIN CROPS SHOULD
NOT BE GROWN, DUE TO A POSSIBLE HEALTH HAZARD.
(COMMENT: AS REQUIRED BY SECTION265.73, IF AN OWNER OR OPERATOR
GROWS FOOD CHAIN CROPS ON HIS LAND TREATMENT FACILITY, HE MUST PLACE THE
INFORMATION DEVELOPED IN THIS SECTION IN THE OPERATING RECORD OF THE
FACILITY.)
(A) THE OWNER OR OPERATOR MUST HAVE IN WRITING, AND MUST IMPLEMENT,
AN UNSATURATED ZONE MONITORING PLAN WHICH IS DESIGNED TO:
(1) DETECT THE VERTICAL MIGRATION OF HAZARDOUS WASTE CONSTITUENTS
UNDER THE ACTIVE PORTION OF THE LAND TREATMENT FACILITY, AND
(2) PROVIDE INFORMATION ON THE BACKGROUND CONCENTRATIONS OF THE
HAZARDOUS WASTE AND HAZARDOUS WASTE CONSTITUENTS IN SIMILAR BUT
UNTREATED SOILS NEARBY; THIS BACKGROUND MONITORING MUST BE CONDUCTED
BEFORE OR IN CONJUNCTION WITH THE MONITORING REQUIRED UNDER PARAGRAPH
(A) (1) OF THIS SECTION.
(B) THE UNSATURATED ZONE MONITORING PLAN MUST INCLUDE, AT A MINIMUM;
(1) SOIL MINOTORING USING SOIL CORES, AND
(2) SOIL-PORE WATER MONITORING USING DEVICES SUCH AS LYSIMETERS.
(C) TO COMPLY WITH PARAGRAPH (A) (1) OF THIS SECTION, THE OWNER OR
OPERATOR MUST DEMONSTRATE IN HIS UNSATURATED ZONE MONITORING PLANT THAT:
(1) THE DEPTH AT WHICH SOIL AND SOIL-PORE WATER SAMPLES ARE TO BE
TAKEN IS BELOW THE DEPTH TO WHICH THE WASTE IS INCORPORATED INTO THE
SOIL;
(2) THE NUMBER OF SOIL AND SOIL-PORE WATER SAMPLES TO BE TAKEN IS
BASED ON THE VARIABILITY OF;
(I) THE HAZARDOUS WASTE CONSTITUENTS (AS IDENTIFIED IN SECTION
265.273(A) AND (B)) IN THE WASTE AND IN THE SOIL; AND
(II) THE SOIL TYPE(S); AND
(3) THE FREQUENCY AND TIMING OF SOIL AND SOIL-PORE WATER SAMPLING IS
BASED ON THE FREQUENCY, TIME, AND RATE OF WASTE APPLICATION, PROXIMITY
TO GROUND WATER, AND SOIL PERMEABILITY.
(D) THE OWNER OR OPERATOR MUST KEEP AT THE FACILITY HIS UNSATURATED
ZONE MONITORING PLAN, AND THE RATIONALE USED IN DEVELOPING THIS PLAN.
(E) THE OWNER OR OPERATOR MUST ANALYZE THE SOIL AND SOIL-PORE WATER
SAMPLES FOR THE HAZARDOUS WASTE CONSTITUENTS THAT WERE FOUND IN THE
WASTE DURING THE WASTE ANALYSIS UNDER SECTION 265.273 (A) AND (B).
(COMMENT: AS REQUIRED BY SECTION 265.73, ALL DATA AND INFORMATION
DEVELOPED BY THE OWNER OR OPERATOR UNDER THIS SECTION MUST BE PLACED IN
THE OPERATING RECORD OF THE FACILITY.)
THE OWNER OR OPERATOR OF A LAND TREATMENT FACILITY MUST KEEP RECORDS
OF THE APPLICATION DATES, APPLICATION RATES, QUANTITIES, AND LOCATION OF
EACH HAZARDOUS WASTE PLACED IN THE FACILITY, IN THE OPERATING RECORD
REQUIRED IN SECTION 265.73.
(A) IN THE CLOSURE PLAN UNDER SECTIN 265.112 AND THE POST-CLOSURE
PLAN UNDER SECTION 265.118, THE OWNER OR OPERATOR MUST ADDRESS THE
FOLLOWING OBJECTIVES AND INDICATE HOW THEY WILL BE ACHIEVED:
(1) CONTROL OF THE MIGRATION OF HAZARDOUS WASTE AND HAZARDOUS WASTE
CONSTITUENTS FROM THE TREATED AREA INTO THE GROUND WATER;
(2) CONTROL OF THE RELEASE OF CONTAMINATED RUN-OFF FROM THE FACILITY
INTO SURFACE WATER;
(3) CONTROL OF THE RELEASE OF AIRBORNE PARTICULATE CONTAMINANTS
CAUSED BY WIND EROSION; AND
(4) COMPLIANCE WITH SECTION 265.276 CONCERNING THE GROWTH OF
FOOD-CHAIN CROPS.
(B) THE OWNER OR OPERATOR MUST CONSIDER AT LEAST THE FOLLOWING
FACTORS IN ADDRESSING THE CLOSURE AND POST-CLOSURE CARE OBJECTIVES OF
PARAGRAPH (A) OF THIS SECTION:
(1) TYPE AND AMOUNT OF HAZARDOUS WASTE AND HAZARDOUS WASTE
CONSTITUENTS APPLIED TO THE LAND TREATMENT FACILITY;
(2) THE MOBILITY AND THE EXPECTED RATE OF MIGRATION OF THE HAZARDOUS
WASTE AND HAZARDOUS WASTE CONSTITUENTS;
(3) SITE LOCATION, TOPOGRAPHY, AND SURROUNDING LAND USE, WITH RESPECT
TO THE POTENTIAL EFFECTS OF POLLUTANT MIGRATION (E.G., PROXIMITY TO
GROUND WATER, SURFACE WATER AND DRINKING WATER SOURCES);
(4) CLIMATE, INCLUDING AMOUNT, FREQUENCY, AND PH OF PRECIPITATION;
(5) GEOLOGICAL AND SOIL PROFILES AND SURFACE AND SUBSURFACE HYDROLOGY
OF THE SITE, AND SOIL CHARACTERISTICS, INCLUDING CATION EXCHANGE
CAPACITY, TOTAL ORGANIC CARBON, AND PH;
(6) UNSATURATED ZONE MONITORING INFORMATION OBTAINED UNDER SECTION
265.278; AND
(7) TYPE, CONCENTRATION, AND DEPTH OF MIGRATION OF HAZARDOUS WASTE
CONSTITUENTS IN THE SOIL AS COMPARED TO THEIR BACKGROUND CONCENTRATIONS,
(C) THE OWNER OR OPERATOR MUST CONSIDER AT LEAST THE FOLLOWING
METHODS IN ADDRESSING THE CLOSURE AND POST-CLOSURE CARE OBJECTIVES OF
PARAGRAPH (A) OF THIS SECTION;
(1) REMOVAL OF CONTAMINATED SOILS;
(2) PLACEMENT OF A FINAL COVER, CONSIDERING: (I) FUNCTIONS OF THE
COVER (E.G., INFILTRATION CONTROL, EROSION AND RUN-OFF CONTROL, AND WIND
EROSION CONTROL), AND (II) CHARACTERISTICS OF THE COVER, INCLUDING
MATERIAL, FINAL SURFACE CONTOURS, THICKNESS, POROSITY AND PERMEABILITY,
SLOPE, LENGTH OF RUN OF SLOPE, AND TYPE OF VEGETATION ON THE COVER;
(3) COLLECTION AND TREATMENT OF RUN-OFF;
(4) DIVERSION STRUCTURES TO PREVENT SURFACE WATER RUN-ON FROM
ENTERING THE TREATED AREA; AND
(5) MONITORING OF SOIL, SOIL-PORE WATER, AND GROUND WATER,
(D) IN ADDITION TO THE REQUIREMENTS OF SECTION 265.117, DURING
THE POST-CLOSURE CARE PERIOD, THE OWNER OR OPERATOR OF A LAND
TREATMENT FACILITY MUST:
(1) MAINTAIN ANY UNSATURATED ZONE MONITORING SYSTEM, AND COLLECT AND
ANALYZE SAMPLES FROM THIS SYSTEM IN A MANNER AND REQUENCY SPECIFIED IN
THE POST-CLOSURE PLAN;
(2) RESTRICT ACCESS TO THE FACILITY AS APPROPRIATE FOR ITS
POST-CLOSURE USE; AND
(3) ASSURE THAT GROWTH OF FOOD CHAIN CROPS COMPLIES WITH SECTION
265.276.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 096 OF 106
COSTLE D M ADMINISTRATOR
EPA
113460
REGULATION
IGNITABLE OR REACTIVE WASTES MUST NOT BE LAND TREATED, UNLESS THE
WASTE IS IMMEDIATELY INCORPORATED INTO THE SOIL SO THAT (1) THE
RESULTING WASTE, MIXTURE, OR DISSOLUTION OF MATERIAL NO LONGER MEETS THE
DEFINITION OF IGNITABLE OR REACTIVE WASTE UNDER SECTIONS 261.21 OR
261.23 OF THIS CHAPTER, AND (2) SECTION 265.17(B) IS COMPLIED WITH.
INCOMPATIBLE WASTES, OR INCOMPATIBLE WASTES AND MATERIALS (SEE
APPENDIX V FOR EXAMPLES), MUST NOT BE PLACED IN THE SAME LAND TREATMENT
AREA, UNLESS SECTION 265.17(B) IS COMPLIED WITH.
INCOMPATIBLE WASTES, OR INCOMPATIBLE WASTES AND MATERIALS (SEE
APPENDIX V FOR EXAMPLES), MUST NOT BE PLACED IN THE SAME LAND TREATMENT
AREA, UNLESS SECTION 265.17(B) IS COMPLIED WITH.
THE REGULATIONS IN THIS SUBPART APPLY TO OWNERS AND OPERATORS OF
FACILITIES THAT DISPOSE OF HAZARDOUS WASTE IN LANDFILLS, EXCEPT AS
SECTION 265.1 PROVIDES OTHERWISE. A WASTE PILE USED AS A DISPOSAL
FACILITY IS A LANDFILL AND IS GOVERNED BY THIS SUBPART.
(A) RUN-ON MUST BE DIVERTED AWAY FROM THE ACTIVE PORTIONS OF A
LANDFILL.
(B) RUN-OFF FROM ACTIVE PORTIONS OF A LANDFILL MUST BE COLLECTED.
(COMMENT: IF THE COLLECTED RUN-OFF IS A HAZARDOUS WASTE UNDER PART
261 OF THIS CHAPTER, IT MUST BE MANAGED AS A HAZARDOUS WASTE IN
ACCORDANCE WITH ALL APPLICABLE REQUIREMENTS OF PARTS 262, 263, AND 265
OF THIS CHAPTER. IF THE COLLECTED RUN-OFF IS DISCHARGED THROUGH A POINT
SOURCE TO WATERS OF THE UNITED STATES, IT IS SUBJECT TO THE REQUIREMENTS
OF SECTION 402 OF THE CLEAN WATER ACT, AS AMENDED.)
(C) THE DATE FOR COMPLIANCE WITH PARAGRAPHS (A) AND (B) OF THIS
SECTION IS 12 MONTHS AFTER THE EFFECTIVE DATE OF THIS PART.
(D) THE OWNER OR OPERATOR OF A LANDFILL CONTAINING HAZARDOUS WASTE
WHICH IS SUBJECT TO DISPERSAL BY WIND MUST COVER OR OTHERWISE MANAGE THE
LANDFILL SO THAT WIND DISPERSAL OF THE HAZARDOUS WASTE IS CONTROLLED.
(COMMENT: AS REQUIRED BY SECTION 265.13, THE WASTE ANALYSIS PLAN
MUST INCLUDE ANALYSES NEEDED TO COMPLY WITH SECTIONS 265.312 AND
265.313. AS REQUIRED BY SECTION 265.73, THE OWNER OR OPERATOR MUST
PLACE THE RESULTS OF THESE ANALYSES IN THE OPERATING RECORD OF THE
FACILITY.)
THE OWNER OR OPERATOR OF A LANDFILL MUST MAINTAIN THE FOLLOWING ITEMS
IN THE OPERATING RECORD REQUIRED IN SECTION 265.73;
(A) ON A MAP, THE EXACT LOCATION AND DIMENSIONS, INCLUDING DEPTH, OF
EACH CELL WITH RESPECT TO PERMANENTLY SURVEYED BENCHMARKS; AND
(B) THE CONTENTS OF EACH CELL AND THE APPROXIMATE LOCATION OF EACH
HAZARDOUS WASTE TYPE WITHIN EACH CELL.
(A) THE OWNER OR OPERATOR MUST PLACE A FINAL COVER OVER THE LANDFILL,
AND THE CLOSURE PLAN UNDER SECTION 265.112 MUST SPECIFY THE FUNCTION AND
DESIGN OF THE COVER. IN THE POST-CLOSURE PLAN UNDER SECTION 265.118,
THE OWNER OR OPERATOR MUST INCLUDE THE POST-CLOSURE CARE REQUIREMENTS OF
PARAGRAPH (D) OF THIS SECTION.
(B) IN THE CLOSURE AND POST-CLOSURE PLANS, THE OWNER OR OPERATOR MUST
ADDRESS THE FOLLOWING OBJECTIVES AND INDICATE HOW THEY WILL BE ACHIEVED:
(1) CONTROL OF POLLUTANT MIGRATION FROM THE FACILITY VIA GROUND
WATER, SURFACE WASTER, AND AIR;
(2) CONTROL OF SURFACE WATER INFILTRATION, INCLUDING PREVENTION OF
POOLING; AND
(3) PREVENTION OF EROSION.
(C) THE OWNEROR OPERATOR MUST CONSIDER AT LEAST THE FOLLOWING FACTORS
IN ADDRESSING THE CLOSURE AND POST-CLOSURE CARE OBJECTIVES OF PARAGRAPH
(B) OF THIS SECTION:
(1) TYPE AND AMOUNT OF HAZARDOUS WASTE AND HAZARDOUS WASTE
CONSTITUENTS IN THE LANDFILL:
(2) THE MOBILITY AND THE EXPECTED RATE OF MIGRATION OF THE HAZARDOUS
WASTE AND HAZARDOUS WASTE CONSTITUENTS:
(3) SITE LOCATION, TOPOGRAPHY, AND SURROUNDING LAND USE, WITH RESPECT
TO THE POTENTIAL EFFECTS OF POLLUTANT MIGRATION (E.G., PROXIMITY TO
GROUND WATER, SURFACE WATER, AND DRINKING WATER SOURCES);
(4) CLIMATE, INCLUDING AMOUNT, FREQUENCY, AND PH OF PRECIPITATION;
(5) CHARACTERISTICS OF THE COVER INCLUDING MATERIAL, FINAL SURFACE
CONTOURS, THICKNESS, POROSITY AND PERMEABILITY, SLOPE, LENGTH OF RUN OF
SLOPE, AND TYPE OF VEGETATION ON THE COVER; AND
(6) GEOLOGICAL AND SOIL PROFILES AND SURFACE AND SUBSURFACE HYDROLOGY
OF THE SITE.
(B) IN ADDITION TO THE REQUIREMENTS OF SECTION 265.117, DURING THE
POST-CLOSURE CARE PERIOD, THE OWNER OR OPERATOR OF A HAZARDOUS WASTE
LANDFILL MUST:
(1) MAINTAIN THE FUNCTION AND INTEGRITY OF THE FINAL COVER AS
SPECIFIED IN THE APPROVED CLOSURE PLAN:
(2) MAINTAIN AND MONITOR THE LEACHATE COLLECTION, REMOVAL, AND
TREATMENT SYSTEM (IF THERE IS ONE PRESENT IN THE LANDFILL) TO PREVENT
EXCESS ACCUMULATION OF LEACHATE IN THE SYSTEM;
(COMMENT: IF THE COLLECTED LEACHATE IS A HAZARDOUS WASTE UNDERPART
261 OF THIS CHAPTER, IT MUST BE MANAGED AS A HAZARDOUS WASTE IN
ACCORDANCE WITH ALL APPLICABLE REQUIREMENTS OF PARTS 262, 263, AND 265
OF THIS CHAPTER. IF THE COLLECTED LEACHATE IS DISCHARGED THROUGH A
POINT SOURCE TO WATERS OF THE UNITED STATES, IT IS SUBJECT TO THE
REQUIREMENTS OF SECTION 402 OF THE CLEAN WATER ACT, AS AMENDED.)
(3) MAINTAIN AND MONITOR THE GAS COLLECTION AND CONTROL SYSTEM (IF
THERE IS ONE PRESENT IN THE LANDFILL) TO CONTROL THE VERTICAL AND
HORIZONTAL ESCAPE OF GASES;
(4) PROTECT AND MAINTAIN SURVEYED BENCHMARKS; AND
(5) RESTRICT ACCESS TO THE LANDFILL AS APPROPRIATE FOR ITS
POST-CLOSURE USE.
IGNITABLE OR REACTIVE WASTE MUST NOT BE PLACED IN A LANDFILL, UNLESS
THE WASTE IS TREATED, RENDERED, OR MIXED BEFORE OR IMMEDIATELY AFTER
PLACEMENT IN THE LANDFILL SO THAT (1) THE RESULTING WASTE, MIXTURE, OR
DISSOLUTION OF MATERIAL NO LONGER MEETS THE DEFINITION OF IGNITABLE OR
REACTIVE WASTE UNDER SECTIONS 261.21 OR 261.23 OF THIS CHAPTER, AND (2)
SECTION 265.17(B) IS COMPLIED WITH.
INCOMPATIBLE WASTES, OR INCOMPATIBLE WASTES AND MATERIALS, (SEE
APPENDIX V FOR EXAMPLES) MUST NOT BE PLACED IN THE SAME LANDFILL CELL,
UNLESS SECTION 265.17(B) IS COMPLIED WITH.
(A) BULK OR NON-CONTAINERIZED LIQUID WASTE OR WASTE CONTAINING FREE
LIQUIDS MUST NOT BE PLACED IN A LANDFILL, UNLESS:
(1) THE LANDFILL HAS A LINER WHICH IS CHEMICALLY AND PHYSICALLY
RESISTANT TO THE ADDED LIQUID, AND A FUNCTIONING LEACHATE COLLECTION AND
REMOVAL SYSTEM WITH A CAPACITY SUFFICIENT TO REMOVE ALL LEACHATE
PRODUCED; OR
(2) BEFORE DISPOSAL, THE LIQUID WASTE OR WASTE CONTAINING FREE
LIQUIDS IS TREATED OR STABILIZED, CHEMICALLY OR PHYSICALLY (E.G., BY
MIXING WITH AN ABSORBENT SOLID), SO THAT FREE LIQUIDS ARE NO LONGER
PRESENT.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 097 OF 106
COSTLE D M ADMINISTRATOR
EPA
113461
REGULATION
(B) A CONTAINER HOLDING LIQUID WASTE OR WASTE CONTAINING FREE LIQUIDS
MUST NOT BE PLACED IN A LANDFILL, UNLESS:
(1) THE CONTAINER IS DESIGNED TO HOLD LIQUIDS OR FREE LIQUIDS FOR A
USE OTHER THAN STORAGE, SUCH AS A BATTERY OR CAPACITOR; OR
(2) THE CONTAINER IS VERY SMALL, SUCH AS AN AMPULE.
(C) THE DATE FOR COMPLIANCE WITH THIS SECTION IS 12 MONTHS AFTER THE
EFFECTIVE DATE OF THIS PART.
(A) AN EMPTY CONTAINER MUST BE CRUSHED FLAT, SHREDDED, OR SIMILARLY
REDUCED IN VOLUME BEFORE IT IS BURIED BENEATH THE SURFACE OF A LANDFILL.
(B) THE DATE FOR COMPLIANCE WITH THIS SECTION IS 12 MONTHS AFTER THE
EFFECTIVE DATE OF THIS PART.
THE REGULATIONS IN THIS SUBPART APPLY TO OWNERS AND OPERATORS OF
FACILITIES THAT TREAT HAZARDOUS WASTE IN INCINERATORS, EXCEPT AS SECTION
265.1 PROVIDES OTHERWISE.
BEFORE ADDING HAZARDOUS WASTE, THE OWNER OR OPERATOR MUST BRING HIS
INCINERATOR TO STEADY STATE (NORMAL) CONDITIONS OF OPERATION --
INCLUDING STEADY STATE OPERATING TEMPERATURE AND AIR FLOW -- USING
AUXILIARY FUEL OR OTHER MEANS.
IN ADDITION TO THE WASTE ANALYSES REQUIRED BY SECTION 265.13, THE
OWNER OR OPERATOR MUST SUFFICIENTLY ANALYZE ANY WASTE WHICH HE HAS NOT
PREVIOUSLY BURNED IN HIS INCINERATOR TO ENABLE HIM TO ESTABLISH STEADY
STATE (NORMAL) OPERATING CONDITIONS (INCLUDING WASTE AND AUXILIARY FUEL
FEED AND AIR FLOW) AND TO DETERMINE THE TYPE OF POLLUTANTS WHICH MIGHT
BE EMITTED. AT A MINIMUM, THE ANALYSIS MUST DETERMINE:
(A) HEATING VALUE OF THE WASTE;
(B) HALOGEN CONTENT AND SULFUR CONTENT IN THE WASTE; AND
(C) CONCENTRATIONS IN THE WASTE OF LEAD AND MERCURY, UNLESS THE OWNER
OR OPERATOR HAS WRITTEN, DOCUMENTED DATA THAT SHOW THAT THE ELEMENT IS
NOT PRESENT.
(COMMENT: AS REQUIRED BY SECTION 265.73, THE OWNER OR OPERATOR MUST
PLACE THE RESULTS FROM EACH WASTE ANALYSIS, OR THE DOCUMENTED
INFORMATION, IN THE OPERATING RECORD OF THE FACILITY.)
(A) THE OWNER OR OPERATOR MUST CONDUCT, AS A MINIMUM THE FOLLOWING
MONOTORING AND INSPECTIONS WHEN INCINERATING HAZARDOUS WASTES:
(1) EXISTING INSTRUMENTS WHICH RELATE TO COMBUSTION AND EMISSION
CONTROL MUST BE MONITORED AT LEAST EVERY 15 MINUTES. APPROPRIATE
CORRECTIONS TO MAINTAIN STEADY STATE COMBUSTION CONDITIONS MUST BE MADE
IMMEDIATELY EITHER AUTOMATICALLY OR BY THE OPERATOR. INSTRUMENTS WHICH
RELATE TO COMBUSTION AND EMISSION CONTROL WOULD NORMALLY INCLUDE THOSE
MEASURING WASTE FEED, AUXILIARY FUEL FEED, AIR FLOW, INCINERATOR
TEMPERATURE, SCRUBBER FLOW, SCRUBBER PH, AND RELEVANT LEVEL CONTROLS.
(2) THE STACK PLUME (EMISSIONS) MUST BE OBSERVED VISUALLY AT LEAST
HOURLY FOR NORMAL APPEARANCE (COLOR AND OPACITY). THE OPERATOR MUST
IMMEDIATELY MAKE ANY INDICATED OPERATING CORRECTIONS NECESSARY TO RETURN
VISIBLE EMISSIONS TO THEIR NORMAL APPEARANCE.
(3) THE COMPLETE INCINERATOR AND ASSOCIATED EQUIPMENT (PUMPS, VALVES,
CONVEYORS, PIPES, ETC.) MUST BE INSPECTED AT LEAST DAILY FOR LEAKS,
SPILLS, AND FUGITIVE EMISSIONS, AND ALL EMERGENCY SHUTDOWN CONTROLS AND
SYSTEM ALARMS MUST BE CHECKED TO ASSURE PROPER OPERATION.
AT CLOSURE, THE OWNER OR OPERATOR MUST REMOVE ALL HAZARDOUS WASTE AND
HAZARDOUS WASTE RESIDUES (INCLUDING BUT NOT LIMITED TO ASH, SCRUBBER
WATERS, AND SCRUBBER SLUDGES) FROM THE INCINERATOR.
(COMMENT: AT CLOSURE, AS THROUGHOUT THE OPERATING PERIOD, UNLESS THE
OWNER OR OPERATOR CAN DEMONSTRATE, IN ACCORDANCE WITH SECTION 261.3(C)
OR (D) OF THIS CHAPTER, THAT ANY SOLID WASTE REMOVED FROM HIS
INCINERATOR IS NOT A HAZARDOUS WASTE, THE OWNER OR OPERATOR BECOMES A
GENERATOR OF HAZARDOUS WASTE AND MUST MANAGE IT IN ACCORDANCE WITH ALL
APPLICABLE REQUIREMENTS OF PARTS 262, 263, AND 265 OF THIS CHAPTER.)
THE REGULATIONS IN THIS SUBPART APPLY TO OWNERS AND OPERATORS OF
FACILITIES THAT THERMALLY TREAT HAZARDOUS WASTE IN DEVICES OTHER THAN
INCINERATORS, EXCEPT AS SECTION 265.1 PROVIDES OTHERWISE. THERMAL
TREATMENT IN INCINERATORS IS SUBJECT TO THE REQUIREMENTS OF SUBPART O.
BEFORE ADDING HAZARDOUS WASTE, THE OWNER OR OPERATOR MUST BRING HIS
THERMAL TREATMENT PROCESS TO STEADY STATE (NORMAL) CONDITIONS OF
OPERATION -- INCLUDING STEADY STATE OPERATING TEMPERATURE -- USING
AUXILIARY FUEL OR OTHER MEANS, UNLESS THE PROCESS IS A NON-CONTINUOUS
(BATCH) THERMAL TREATMENT PROCESS WHICH REQUIRES A COMPLETE THERMAL
CYCLE TO TREAT A DISCRETE QUANTITY OF HAZARDOUS WASTE.
IN ADDITION TO THE WASTE ANALYSES REQUIRED BY SECTION 265.13, THE
OWNER OR OPERATOR MUST SUFFICIENTLY ANALYZE ANY WASTE WHICH HE HAS NOT
PREVIOUSLY TREATED IN HIS THERMAL PROCESS TO ENABLE HIM TO ESTABLISH
STEADY STATE (NORMAL) OR OTHER APPROPRIATE (FOR A NON-CONTINUOUS
PROCESS) OPERATING CONDITIONS (INCLUDING WASTE AND AUXILIARY FUEL FEED)
AND TO DETERMINE THE TYPE OF POLLUTANTS WHICH MIGHT BE EMITTED. AT A
MINIMUM, THE ANALYSIS MUST DETERMINE:
(A) HEATING VALUE OF THE WASTE;
(B) HALOGEN CONTENT AND SULFUR CONTENT IN THE WASTE; AND
(C) CONCENTRATIONS IN THE WASTE OF LEAD AND MERCURY, UNLESS THE OWNER
OR OPERATOR HAS WRITTEN, DOCUMENTED DATA THAT SHOW THAT THE ELEMENT IS
NOT PRESENT.
(COMMENT: AS REQUIRED BY SECTION 265.73, THE OWNER OR OPERATOR MUST
PLACE THE RESULTS FROM EACH WASTE ANALYSIS, OR THE DOCUMENTED
INFORMATION, IN THE OPERATING RECORD OF THE FACILITY.)
(A) THE OWNER OR OPERATOR MUST CONDUCT, AS A MINIMUM, THE FOLLOWING
MONITORING AND INSPECTIONS WHEN THERMALLY TREATING HAZARDOUS WASTE:
(1) EXISTING INSTRUMENTS WHICH RELATE TO TEMPERATURE AND EMISSION
CONTROL (IF AN EMISSION CONTROL DEVICE IS PRESENT) MUST BE MONITORED AT
LEAST EVERY 15 MINUTES. APPROPRIATE CORRECTIONS TO MAINTAIN STEADY
STATE OR OTHER APPROPRIATE THERMAL TREATMENT CONDITIONS MUST BE MADE
IMMEDIATELY EITHER AUTOMATICALLY OR BY THE OPERATOR. INSTRUMENTS WHICH
RELATE TO TEMPERATURE AND EMISSION CONTROL WOULD NORMALLY INCLUDE THOSE
MEASURING WASTE FEED, AUXILIARY FUEL FEED, TREATMENT PROCESS
TEMPERATURES, AND RELEVANT PROCESS FLOW AND LEVEL CONTROLS.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 098 OF 106
COSTLE D M ADMINISTRATOR
EPA
113462
REGULATION
(2) THE STACK PLUME (EMISSIONS), WHERE PRESENT, MUST BE OBSERVED
VISUALLY AT LEAST HOURLY FOR NORMAL APPEARANCE (COLOR AND OPACITY). THE
OPERATOR MUST IMMEDIATELY MAKE ANY INDICATED OPERATING CORRECTIONS
NECESSARY TO RETURN ANY VISIBLE EMISSIONS TO THEIR NORMAL APPEARANCE.
(3) THE COMPLETE THERMAL TREATMENT PROCESS AND ASSOCIATED EQUIPMENT
(PUMPS, VALVES, CONVEYORS, PIPES, ETC.) MUST BE INSPECTED AT LEAST DAILY
FOR LEAKS, SPILLS, AND FUGITIVE EMISSIONS, AND ALL EMERGENCY SHUTDOWN
CONTROLS AND SYSTEM ALARMS MUST BE CHECKED TO ASSURE PROPER OPERATION.
AT CLOSURE, THE OWNER OR OPERATOR MUST REMOVE ALL HAZARDOUS WASTE AND
HAZARDOUS WASTE RESIDUES (INCLUDING, BUT NOT LIMITED TO, ASH) FROM THE
THERMAL TREATMENT PROCESS OR EQUIPMENT.
(COMMENT: AT CLOSURE, AS THROUGHOUT THE OPERATING PERIOD, UNLESS THE
OWNER OR OPERATOR CAN DEMONSTRATE, IN ACCORDANCE WITH SECTION 261.3(C)
OR (D) OF THIS CHAPTER, THAT ANY SOLID WASTE REMOVED FROM HIS THERMAL
TREATMENT PROCESS OR EQUIPMENT IS NOT A HAZARDOUS WASTE, THE OWNER OR
OPERATOR BECOMES A GENERATOR OF HAZARDOUS WASTE AND MUST MANAGE IT IN
ACCORDANCE WITH ALL APPLICABLE REQUIREMENTS OF PARTS 262, 263, AND 265
OF THIS CHAPTER.)
EXPLOSIVES.
OPEN BURNING OF HAZARDOUS WASTE IS PROHIBITED EXCEPT FOR THE OPEN
BURNING AND DETONATION OF WASTE EXPLOSIVES. WASTE EXPLOSIVES INCLUDE
WASTE WHICH HAS THE POTENTIAL TO DETONATE AND BULK MILITARY PROPELLANTS
WHICH CANNOT SAFELY BE DISPOSED OF THROUGH OTHER MODES OF TREATMENT.
DETONATION IS AN EXPLOSION IN WHICH CHEMICAL TRANSFORMATION PASSES
THROUGH THE MATERIAL FASTER THAN THE SPEED OF SOUND (0.33
KILOMITERS/SECOND AT SEA LEVEY). OWNERS OR OPERATORS CHOOSING TO OPEN
BURN OR DETONATE WASTE EXPLOSIVES MUST DO SO IN ACCORDANCE WITH THE
FOLLOWING TABLE AND IN A MANNER THAT DOES NOT THREATEN HUMAN HEALTH OR
THE ENVIRONMENT.
FIGURE OMITTED
THE REGULATIONS IN THIS SUBPART APPLY TO OWNERS AND OPERATORS OF
FACILITIES WHICH TREAT HAZARDOUS WASTES BY CHEMICAL, PHYSICAL, OR
BIOLOGICAL METHODS IN OTHER THAN TANKS, SURFACE IMPOUNDMENTS, AND LAND
TREATMENT FACILITIES, EXCEPT AS SECTION 265.1 PROVIDES OTHERWISE.
CHEMICAL, PHYSICAL, AND BIOLOGICAL TREATMENT OF HAZARDOUS WASTE IN
TANKS, SURFACE IMPOUNDMENTS, AND LAND TREATMENT FACILITIES MUST BE
CONDUCTED IN ACCORDANCE WITH SUBPARTS J.K. AND M, RESPECTIVELY.
(A) CHEMICAL, PHYSICAL, OR BIOLOGICAL TREATMENT OF HAZARDOUS WASTE
MUST COMPLY WITH SECTION 265.17(B).
(B) HAZARDOUS WASTES OR TREATMENT REAGENTS MUST NOT BE PLACED IN THE
TREATMENT PROCESS OR EQUIPMENT IF THEY COULD CAUSE THE TREATMENT PROCESS
OR EQUIPMENT TO RUPTURE, LEAK, CORRODE, OR OTHERWISE FAIL BEFORE THE END
OF ITS INTENDED LIFE.
(C) WHERE HAZARDOUS WASTE IS CONTINUOUSLY FED INTO A TREATMENT
PROCESS OR EQUIPMENT, THE PROCESS OR EQUIPMENT MUST BE EQUIPPED WITH A
MEANS TO STOP THIS INFLOW (E.G., A WASTE FEED CUT-OFF SYSTEM OR BY-PASS
SYSTEM TO A STANDBY CONTAINMENT DEVICE).
(COMMENT: THESE SYSTEMS ARE INTENDED TO BE USED IN THE EVENT OF A
MALFUNCTION IN THE TREATMENT PROCESS OR EQUIPMENT.)
(A) IN ADDITION TO THE WASTE ANALYSIS REQUIRED BY SECTION 265.13,
WHENEVER.
(1) A HAZARDOUS WASTE WHICH IS SUBSTANTIALLY DIFFERENT FROM WASTE
PREVIOUSLY TREATED IN A TREATMENT PROCESS OR EQUIPMENT AT THE FACILITY
IS TO BE TREATED IN THAT PROCESS OR EQUIPMENT AT THE FACILITY IS TO BE
TREATED IN THAT PROCESS OR EQUIPMENT, OR
(2) A SUBSTANTIALLY DIFFERENT PROCESS THAN ANY PREVIOUSLY USED AT THE
FACILITY IS TO BE USED TO CHEMICALLY TREAT HAZARDOUS WASTE; THE OWNER
OR OPERATOR MUST, BEFORE TREATING THE DIFFERENT WASTE OR USING THE
DIFFERENT PROCESS OR EQUIPMENT:
(I) CONDUCT WASTE ANALYSES AND TRIAL TREATMENT TESTS (E.G., BENCH
SCALE OR PILOT PLANT SCALE TESTS); OR
(II) OBTAIN WRITTEN, DOCUMENTED INFORMATION ON SIMILAR TREATMENT OF
SIMILAR WASTE UNDER SIMILAR OPERATING CONDITIONS; TO SHOW THAT THIS
PROPOSED TREATMENT WILL MEET ALL APPLICABLE REQUIREMENTS OF SECTION
265.401(A) AND (B).
(COMMENT: AS REQUIRED BY SECTION 265.13, THE WASTE ANALYSIS PLANT
MUST INCLUDE ANALYSES NEEDED TO COMPLY WITH SECTIONS 265.405 AND
265.406. AS REQUIRED BY SECTION 265.73, THE OWNER OR OPERATOR MUST
PLACE THE RESULTS FROM EACH WASTE ANALYSIS AND TRIAL TEST, OR THE
DOCUMENTED INFORMATION, IN THE OPERATING RECORD OF THE FACILITY.)
(A) THE OWNER OR OPERATOR OF A TREATMENT FACILITY MUST INSPECT, WHERE
PRESENT:
(1) DISCHARGE CONTROL AND SAFETY EQUIPMENT (E.G., WASTE FEED CUT-OFF
SYSTEMS, BY-PASS SYSTEMS, DRAINAGE SYSTEMS, AND PRESSURE RELIEF SYSTEMS)
AT LEAST ONCE EACH OPERATING DAY, TO ENSURE THAT IT IS IN GOOD WORKING
ORDER;
(2) DATA GATHERED FROM MONITORING EQUIPMENT (E.G., PRESSURE AND
TEMPERATURE GAUGES), AT LEAST ONCE EACH OPERATING DAY, TO ENSURE THAT
THE TREATMENT PROCESS OR EQUIPMENT IS BEING OPERATED ACCORDING TO ITS
DESIGN;
(3) THE CONSTRUCTION MATERIALS OF THE TREATMENT PROCESS OR EQUIPMENT,
AT LEAST WEEKLY, TO DETECT CORROSION OR LEAKING OF FIXTURES OR SEAMS;
AND
(4) THE CONSTRUCTION MATERIALS OF, AND THE AREA IMMEDIATELY
SURROUNDING, DISCHARGE CONFINEMENT STRUCTURES (E.G., DIKES), AT LEAST
WEEKLY, TO DETECT EROISON OR OBVIOUS SIGNS OF LEAKAGE (E.G., WET SPOTS
OR DEAD VEGETATION).
(COMMENT: AS REQUIRED BY SECTION 265.15(C), THE OWNER OR OPERATOR
MUST REMEDY ANY DETERIORATION OR MALFUNCTION HE FINDS.)
AT CLOSURE, ALL HAZARDOUS WASTE AND HAZARDOUS WASTE RESIDUES MUST BE
REMOVED FROM TREATMENT PROCESSES OR EQUIPMENT, DISCHARGE CONTROL
EQUIPMENT, AND DISCHARGE CONFINEMENT STRUCTURES. (COMMENTS: AT
CLOSURE, AS THROUGHOUT THE OPERATING PERIOD, UNLESS THE OWNER OR
OPERATOR CAN DEMONSTRATE, IN ACCORDANCE WITH SECTION 261.3(C) OR (D) OF
THIS CHAPTER, THAT ANY SOLID WASTE REMOVED FROM HIS TREATMENT PROCESS OR
EQUIPMENT IS NOT A HAZARDOUS WASTE, THE OWNER OR OPERATOR BECOMES A
GENERATOR OF HAZARDOUS WASTE AND MUST MANAGE IT IN ACCORDANCE WITH ALL
APPLICABLE REQUIREMENTS OF PARTS 262, 263, AND 265 OF THIS CHAPTER).
(A) IGNITABLE OR REACTIVE WASTE MUST NOT BE PLACED IN A TREATMENT
PROCESS OR EQUIPMENT UNLESS;
(1) THE WASTE IS TREATED, RENDERED, OR MIXED BEFORE OR IMMEDIATELY
AFTER PLACEMENT IN THE TREATMENT PROCESS OR EQUIPMENT SO THAT (I) THE
RESULTING WASTE, MIXTURE, OR DISSOLUTION OF MATERIAL NO LONGER MEETS THE
DEFINITION OF IGNITABLE OR REACTIVE WASTE UNDER SECTION 261.21 OR 261.23
OR THIS CHAPTER, AND (II) SECTION 265.17(B) IS COMPLIED WITH; OR (2)
THE WASTE IS TREATED IN SUCH A WAY THAT IT IS PROTECTED FROM ANY
MATERIAL OR CONDITIONS WHICH MAY CAUSE THE WASTE TO IGNITE OR REACT.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 099 OF 106
COSTLE D M ADMINISTRATOR
EPA
113463
REGULATION
(A) INCOMPATIBLE WASTES, OR INCOMPATIBLE WASTES AND MATERIALS, (SEE
APPENDIX V FOR EXAMPLES) MUST NOT BE PLACED IN THE SAME TREATMENT
PROCESS OR EQUIPMENT, UNLESS SECTION 265.17(B) IS COMPLIED WITH.
(B) HAZARDOUS WASTE MUST NOT BE PLACED IN UNWASHED TREATMENT
EQUIPMENT WHICH PREVIOUSLY HELD AN INCOMPATIBLE WASTE OR MATERIAL,
UNLESS SECTION 265.17(B) IS COMPLIED WITH.
EXCEPT AS SECTION 265.1 PROVIDES OTHERWISE;
(A) THE OWNER OR OPERATOR OF A FACILITY WHICH DISPOSES OF HAZARDOUS
WASTE BY UNDERGROUND INJECTION IS EXCLUDED FROM THE REQUIREMENTS OF
SUBPARTS G AND H OF THIS PART.
(B) THE REQUIREMENTS OF THIS SUBPART APPLY TO OWNERS AND OPERATORS OF
WELLS USED TO DISPOSE OF HAZARDOUS WASTE WHICH ARE CLASSIFIED AS CLASS I
UNDER SECTION 122.32(A) OF THIS CHAPTER AND WHICH ARE CLASSIFIED AS
CLASS IV UNDER SECTION 122.32(D) OF THIS CHAPTER.
(COMMENT: IN ADDITION TO THE REQUIREMENTS OF SUBPARTS A THROUGH E OF
THIS PART, THE OWNER OR OPERATOR OF A FACILITY WHICH DISPOSES OF
HAZARDOUS WASTE BY UNDERGROUND INJECTION ULTIMATELY MUST COMPLY WITH THE
REQUIREMENTS OF SECTIONS 265.431-265.437. THESE SECTIONS ARE RESERVED
AT THIS TIME. THE AGENCY WILL PROPOSE REGULATIONS THAT WOULD ESTABLISH
THOSE REQUIREMENTS.)
THE RECORDKEEPING PROVISIONS OF SECTION 265.73 SPECIFY THAT AN OWNER
OR OPERATOR MUST KEEP A WRITTEN OPERATING RECORD AT HIS FACILITY. THIS
APPENDIX PROVIDES ADDITIONAL INSTRUCTIONS FOR KEEPING PORTIONS OF THE
OPERATING RECORD. SEE SECTION 265.73(B) FOR ADDITIONAL RECORDKEEPING
REQUIREMENTS.
THE FOLLOWING INFORMATION MUST BE RECORDED, AS IT BECOMES AVAILABLE,
AND MAINTAINED IN THE OPERATING RECORD UNTIL CLOSURE OF THE FACILITY IN
THE FOLLOWING MANNER.
RECORDS OF EACH HAZARDOUS WASTE RECEIVED, TREATED, STORED, OR
DISPOSED OF AT THE FACILITY WHICH INCLUDE THE FOLLOWING:
(1) A DESCRIPTION BY ITS COMMON NAME AND THE EPA HAZARDOUS WASTE
NUMBER(S) FROM PART 261 OF THIS CHAPTER WHICH APPLY TO THE WASTE. THE
WASTE DESCRIPTION ALSO MUST INCLUDE THE WASTE'S PHYSICAL FORM, I.E.,
LIQUID, SLUDGE, SOLID, OR CONTAINED GAS. IF THE WASTE IS NOT LISTED IN
PART 261, SUBPART D, OF THIS CHAPTER, THE DESCRIPTION ALSO MUST INCLUDE
THE PROCESS THAT PRODUCED IT (FOR EXAMPLE, SOLID FILTER CAKE FROM
PRODUCTION OF -- EPA HAZARDOUS WASTE NUMBER WO51).
EACH HAZARDOUS WASTE LISTED IN PART 261, SUBPART D, OF THIS CHAPTER,
AND EACH HAZARDOUS WASTE CHARACTERISTIC DEFINED IN PART 261, SUBPART C,
OF THIS CHAPTER, HAS A FOUR-DIGIT EPA HAZARDOUS WASTE NUMBER ASSIGNED TO
IT. THIS NUMBER MUST BE USED FOR RECORDKEEPING AND REPORTING PURPOSES.
WHERE A HAZARDOUS WASTE CONTAINS MORE THAN ONE LISTED HAZARDOUS WASTE,
OR WHERE MORE THAN ONE HAZARDOUS WASTE CHARACTERISTIC APPLIES TO THE
WASTE, THE WASTE DESCRIPTION MUST INCLUDE ALL APPLICABLE EPA HAZARDOUS
WASTE NUMBERS.
(2) THE ESTIMATED OR MANIFEST-REPORTED WEIGHT, OR VOLUME AND DENSITY,
WHERE APPLICABLE, IN ONE OF THE UNITS OF MEASURE SPECIFIED IN TABLE 1;
AND
(3) THE METHOD(S) (BY HANDLING CODE(S) AS SPECIFIED IN TABLE 2) AND
DATE(S) OF TREATMENT, STORAGE, OR DISPOSAL.
TABLE OMITTED
ENTER THE HANDLING CODE(S) LISTED BELOW THAT MOST CLOSELY REPRESENTS
THE TECHNIQUE(S) USED AT THE FACILITY TO TREAT, STORE, OR DISPOSE OF
EACH QUANTITY OF HAZARDOUS WASTE RECEIVED.
1. STORAGE S01 CONTAINER (BARREL, DRUM, ETC.) S02 TANK S03 WASTE
PILE S04 SURFACE IMPOUNDMENT S05 OTHER (SPECIFY)
2. TREATMENT (A) THERMAL TREATMENT T06 LIQUID INJECTION INCINERATOR
T07 ROTARY KILN INCINERATOR T08 FLUIDIZED BED INCINERATOR T09 MULTIPLE
HEARTH INCINERATOR T10 INFRARED FURNACE INCINERATOR T11 MOLTEN SALT
DESTRUCTOR T12 PYROLYSIS T13 WET AIR OXIDATION T14 CALCINATION T15
MICROWAVE DISCHARGE T16 CEMENT KILN T17 LIME KILN T18 OTHER (SPECIFY)
(B) CHEMICAL TREATMENT T19 ABSORPTION MOUND T20 ABSORPTION FIELD T21
CHEMICAL FIXATION T22 CHEMICAL OXIDATION T23 CHEMICAL PRECIPITATION T24
CHEMICAL REDUCTION T25 CHLORINATION T26 CHLORINOLYSIS T27 CYANIDE
DESTRUCTION T28 DEGRADATION T29 DETOXIFICATION T30 ION EXCHANGE T31
NEUTRALIZATION T32 OZONATION T33 PHOTOLYSIS T34 OTHER (SPECIFY) (C)
PHYSICAL TREATMENT; (1) SEPARATION OF COMPONENTS T35 CENTRIFUGATION T36
CLARIFICATION T37 COAGULATION T38 DECANTING T39 ENCAPSULATION T40
FILTRATION T41 FLOCCULATION T42 FLOTATION T43 FOAMING T44 SEDIMENTATION
T45 THICKENING T46 ULTRAFILTRATION T47 OTHER (SPECIFY) (2) REMOVAL OF
SPECIFIC COMPONENTS T48 ABSORPTION-MOLECULAR SIEVE T49 ACTIVATED -ARBON
T50 BLENDING T51 CATALYSIS T52 CRYSTALLIZATION T53 DIALYSIS T54
DISTILLATION T55 ELECTRODIALYSIS T56 ELECTROLYSIS T57 EVAPORATION T58
HIGH GRADIENT MAGNETIC SEPARATION T59 LEACHING T60 LIQUID ION EXCHANGE
T61 LIQUID-LIQUID EXTRACTION T62 REVERSE OSMOSIS T63 SOLVENT RECOVERY
T64 STRIPPING T65 SAND FILTER T66 OTHER (SPECIFY) (D) BIOLOGICAL
TREATMENT T67 ACTIVATED SLUDGE T68 AEROBIC LAGOON T69 AEROBIC TANK T70
ANAEROBIC LAGOON T71 COMPOSING T72 SEPTIC TANK T73 SPRAY IRRIGATION T74
THICKENING FILTER T75 TRICKING FILTER T76 WASTE STABILIZATION POND T77
OTHER (SPECIFY) T78-79 (RESERVED)
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 100 OF 106
COSTLE D M ADMINISTRATOR
EPA
113464
REGULATION
3. DISPOSAL D80 UNDERGROUND INJECTION D81 LANDFILL D82 LAND
TREATMENT D83 OCEAN DISPOSAL D84 SURFACE IMPOUNDMENT (TO BE CLOSED AS A
LANDFILL) D85 OTHER (SPECIFY)
BILLING CODE 5560-01-M.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 101 OF 106
COSTLE D M ADMINISTRATOR
EPA
113465
REGULATION
BLANK FORM OMITTED.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 102 OF 106
COSTLE D M ADMINISTRATOR
EPA
113466
REGULATION
BLANK FORM OMITTED.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 103 OF 106
COSTLE D M ADMINISTRATOR
EPA
113467
REGULATION
WASTE REPORT (EPA FORM 8700-13)
IMPORTANT: READ ALL INSTRUCTIONS BEFORE COMPLETING THIS FORM.
FOR GENERATORS WHO SHIP THEIR WASTE OFF-SITE TO FACILITIES WHICH THEY
DO NOT OWN OR OPERATE; FILL IN THE REPORTING YEAR FOR THIS REPORT
(E.G., 1982).
NOTE. -- GENERATORS WHO SHIP HAZARDOUS WASTE OFF-SITE TO A FACILITY
WHICH THEY OWN OR OPERATE MUST COMPLETE THE FACILITY (PART B) REPORT
INSTEAD OF THE PART A REPORT.
FOR OWNERS OR OPERATORS OF ON-SITE OR OFF-SITE FACILITIES THAT TREAT,
STORE, OR DISPOSE OF HAZARDOUS WASTE; FILL IN THE REPORTING YEAR FOR
THIS REPORT (E.G., 1982).
FOR FACILITY OWNERS OR OPERATORS WHO ACCEPT FOR TREATMENT, STORAGE,
OR DISPOSAL ANY HAZARDOUS WASTE FROM AN OFF-SITE SOURCE WITHOUT AN
ACCOMPANYING MANIFEST; FILL IN THE DATE THE WASTE WAS RECEIVED AT THE
FACILITY (E.G., APRIL 12, 1982).
IF YOU RECEIVED A PREPRINTED LABEL FROM EPA, ATTACH IT IN THE SPACE
PROVIDED AND LEAVE SECTIONS II THROUGHIV BLANK. IF THERE IS AN ERROR OR
OMISSION ON THE LABEL, CROSS OUT THE INCORRECT INFORMATION AND FILL IN
THE A-PROPRIATE ITEMS(S). IF YOU DID NOT RECEIVE A PREPRINTED LABEL,
COMPLETE SECTION II THROUGH SECTION IV.
IF YOUR INSTALLATION LOCATION ADDRESS IS DIFFERENT THAN THE MAILING
ADDRESS, ENTER THE LOCATION ADDRESS OF YOUR INSTALLATION.
ENTER THE NAME (LAST AND FIRST) AND TELEPHONE NUMBER OF THE PERSON
WHOM MAY BE CONTACTED REGARDING INFORMATION CONTAINED IN THIS REPORT.
LIST THE EPA IDENTIFICATION NUMBER FOR EACH TRANSPORTER WHOSE
SERVICES YOU USED DURING THE REPORTING YEAR.
A. ENTER THE MOST RECENT COST ESTIMATE FOR FACILITY CLOSURE IN
DOLLARS. SEE SUBPART H OF 40 CFR PARTS 264 OR 265 FOR MORE DETAIL.
B. FOR DISPOSAL FACILITIES ONLY, ENTER THE MOST RECENT COST ESTIMATE
FOR POST CLOSURE MONITORING AND MAINTENANCE . SEE SUBPART H OF 40 CFR
PARTS 264 OR 265 FOR MORE DETAIL.
THE GENERATOR OR HIS AUTHORIZED REPRESENTATIVE (PART A REPORTS) OR
THE OWNER OR OPERATOR OF THE FACILITY OR HIS AUTHORIZED REPRESENTATIVE
(PARTS B AND C REPORTS) MUST SIGN AND DATE THE CERTIFICATION WHERE
INDICATED. THE PRINTED OR TYPED NAME OF THE PERSON SIGNING THE REPORT
MUST ALSO BE INCLUDED WHERE INDICATED.
NOTE. -- SINCE MORE THAN ONE PAGE IS REQUIRED FOR EACH REPORT, ENTER
THE PAGE NUMBER OF EACH SHEET IN THE LOWER RIGHT CORNER AS WELL AS THE
TOTAL NUMBER OF PAGES.
FACILITY ANNUAL REPORT FOR OWNERS OR OPERATORS OF ON-SITE OR OFF-SITE
FACILITIES THAT TREAT, STORE, OR DISPOSE OF HAZARDOUS WASTE.
NOTE. -- GENERATORS WHO SHIP HAZARDOUS WASTE OFF-SITE TO A FACILITY
THEY OWN OR OPERATE MUST COMPLETE THIS PART B REPORT INSTEAD OF THE
GENERATOR (PART A) ANNUAL REPORT.
IMPORTANT: READ ALL INSTRUCTIONS BEFORE COMPLETING THIS FORM.
PUT AN "X" IN THE BOX MARKED PART B.
ENTER THE EPA IDENTIFICATION NUMBER FOR YOUR FACILITY.
FIGURE OMITTED
ENTER THE EPA IDENTIFICATION NUMBER OF THE GENERATOR OF THE WASTE
DESCRIBED UNDER SECTION XXI WHICH WAS RECEIVED BY YOUR FACILITY DURING
THE REPORTING YEAR. A SEAPRATE SHEET MUST BE USED FOR EACH GENERATOR.
IF THE WASTE CAME FROM A FOREIGN GENERATOR, ENTER THE EPA IDENTIFICATION
NUMBER OF THE IMPORTER IN THIS SECTION AND ENTER THE NAME AND ADDRESS OF
THE FOREIGN GENERATOR IN SECTION XXII, COMMENTS. IF THE WASTE WAS
GENERATED AND TREATED, STORED, OR DISPOSED OF AT THE SAME INSTALLATION,
LEAVE THIS SECTION BLANK.
ENTER THE NAME OF THE GENERATOR CORRESPONDING TO THE GENERATOR'S EPA
IDENTIFICATION NUMBER IN SECTION XVIII.
IF THE WASTE WAS GENERATED AND TREATED, STORED, OR DIPOSED, OF AT THE
SAME INSTALLATION, ENTER "ON-SITE".
IF THE WASTE CAME FROM A FOREIGN GENERATOR, ENTER THE NAME OF THE
IMPORTER CORRESPONDING TO THE EPA IDENTIFICATION NUMBER IN SECTION
XVIII.
ENTER THE ADDRESS OF THE GENERATOR CORRESPONDING TO THE GENERATOR'S
EPA IDENTIFICATION NUMBER IN SECTION XVIII. IF THE WASTE WAS GENERATED
AND TREATED, STORED, OR DISPOSED OF AT THE SAME INSTALLATION, LEAVE THIS
SECTION BLANK. IF THE WASTE CAME FROM A FOREIGN GENERATOR, ENTER THE
ADDRESS OF THE IMPORTER CORRESPONDING TO THE EPA IDENTIFICATION NUMBER
IN SECTION XVIII.
ALL INFORMATION IN THIS SECTION MUST BE ENTERED BY LINE NUMBER. A
SEPARATE LINE ENTRY IS REQUIRED FOR EACH DIFFERENT WASTE OR MIXTURE OF
WASTES THAT YOUR FACILITY RECEIVED DURING THE REPORTING YEAR. THE
HANDLING CODE APPLICABLE TO THAT WASTE AT THE END OF THE REPORTING YEAR
SHOULD BE REPORTED. IF A DIFFERENT HANDLING CODE APPLIES TO PORTIONS OF
THE SAME WASTE, (E.G., PART OF THE WASTE IS SOTRED WHILE THE REMAINDER
WAS "CHEMICALLY FIXED" DURING THE YEAR), USE A SEPARATE LINE ENTRY FOR
EACH PORTION.
FIGURE OMITTED
FOR HAZARDOUS WASTES THAT ARE LISTED UNDER 40 CFR PART 261, SUBPART
D, ENTER THE EPA LISTED NAME, ABBREVIATED IF NECESSARY. WHERE MIXTURES
OF LISTED WASTES WERE RECEIVED, ENTER THE DESCRIPTION WHICH YOU BELIEVE
BEST DESCRIBES THE WASTE.
FOR UNLISTED HAZARDOUS WASTE IDENTIFIED UNDER 40 CFR PART 261,
SUBPART C, ENTER THE DESCRIPTION WHICH YOU BELIEVE BEST DESCRIBES THE
WASTE. INCLUDE THE SPECIFIC MANUFACTURING OR OTHER PROCESS GENERATING
THE WASTE (E.G., GREEN SLUDGE FROM WIDGET MANUFACTURING) AND IF KNOWN,
THE CHEMICAL OR GENERIC CHEMICAL NAME OF THE WASTE.
FOR LISTED WASTE, ENTER THE FOUR DIGIT EPA HAZARDOUS WASTE NUMBER
FROM 40 CFR PART 261, SUBPART D, WHICH IDENTIFIES THE WASTE.
FOR A MIXTURE OF MORE THAN ONE LISTED WASTE, ENTER EACH OF THE
APPLICABLE EPA HAZARDOUS WASTE NUMBERS.
FOUR SPACES ARE PROVIDED. IF MORE SPACE IS NEEDED, CONTINUE ON THE
NEXT LINE(S) AND LEAVE ALL OTHER INFORMATION ON THAT LINE BLANK.
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 104 OF 106
COSTLE D M ADMINISTRATOR
EPA
113468
REGULATION
FIGURE OMITTED
FOR UNLISTED HAZARDOUS WASTES, ENTER THE EPA HAZARDOUS WASTE NUMBERS
FROM 40 CFR PART 261, SUBPART C, APPLICABLE TO THE WASTE. IF MORE THAN
FOUR SPACES ARE REQUIRED, FOLLOW THE PROCEDURE DESCRIBED ABOVE.
ENTER ONE EPA HANDLING CODE FOR EACH WASTE LINE ENTRY. WHERE SEVERAL
HANDLING STEPS HAVE OCCURRED DURING THE YEAR, REPORT ONLY THE HANDLING
CODE REPRESENTING THE WASTE'S STATUS AT THE END OF THE REPORTING YEAR OR
ITS FINAL DISPOSITION. EPA HANDLING CODES ARE GIVEN IN APPENDIX I OF
THIS PART.
ENTER THE TOTAL AMOUNT OF WASTE DESCRIBED ON THIS LINE WHICH YOU
RECEIVED DURING THIS REPORTING YEAR.
ENTER THE UNIT OF MEASURE CODE FOR THE QUANTITY OF WASTE DESCRIBED ON
THIS LINE. UNITS OF MEASURE WHICH MUST BE USED IN THIS REPORT AND THE
APPROPRIATE CODES ARE:
FIGURE OMITTED
UNITS OF VOLUME MAY NOT BE USED FOR REPORTING BUT MUST BE CONVERTED
INTO ONE OF THE ABOVE UNITS OF WEIGHT, TAKING INTO ACCOUNT THE
APPROPRIATE DENSITY OR SPECIFY GRAVITY OF THE WASTE.
THIS SPACE MAY BE USED TO EXPLAIN OR CLARIFY ANY ENTRY. IF USED,
ENTER A CROSS-REFERENCE TO THE APPROPRIATE SECTION NUMBER.
NOTE. -- SINCE MORE THAN ONE PAGE IS REQUIRED FOR EACH REPORT, ENTER
THE PAGE NUMBER OF EACH SHEET IN THE LOWER RIGHT HAND CORNER AS WELL AS
THE TOTAL NUMBER OF PAGES.
WHERE REQUIRED BY 40 CFR 264 OR 265, SUBPARTS F OR R, ATTACH
GROUND-WATER MONITORING DATA TO THIS REPORT.
UNMANIFESTED WASTE REPORT FOR FACILITY OWNERS OR OPERATORS WHO ACCEPT
FOR TREATMENT, STORAGE, OR DISPOSAL ANY HAZARDOUS WASTE FROM AN OFF-SITE
SOURCE WITHOUT AN ACCOMPANYING MANIFEST.
IMPORTANT; READ ALL INSTRUCTIONS BEFORE COMPLETING THIS FORM.
FOR THE UNMANIFESTED WASTE REPORT, EPA FORMS 8700-13 AND 8700-13B
MUST BE FILLED OUT ACCORDING TO THE DIRECTIONS FOR THE PART B FACILITY
ANNUAL REPORT EXCEPT AHT: (1) BLOCKS FOR WHICH INFORMATION IS NOT
AVAILABLE TO THE OWNER OR OPERATOR OF THE REPORTING FACILITY MAY BE
MARKED "UNKNOWN," AND (2) THE FOLLOWING SPECIAL INSTRUCTIONS APPLY:
DO NOT ENTER CLOSURE OR POST-CLOSURE COST ESTIMATES.
PUT AN "X" IN THE BOX MARKED PART C.
USE AS MANY LINE NUMBERS AS ARE NEEDED TO DESCRIBE THE WASTE.
ENTER THE HANDLING CODE WHICH DESCRIBES THE STATUS OF THE WASTE ON
THE DATE THE REPORT IS FILED.
ENTER THE AMOUNT OF WASTE RECEIVED, RATHER THAN A TOTAL ANNUAL
AGGREGATE.
A. ENTER THE EPA IDENTIFICATION NUMBER, NAME, AND ADDRESS OF THE
TRANSPORTER, IF KNOWN. IF THE TRANSPORTER IS NOT KNOWN TO YOU, ENTER
THE NAME AND CHAUFFEUR LICENSE NUMBER OF THE DRIVER AND THE STATE AND
LICENSE NUMBER OF THE TRANSPORTING VEHICLE WHICH PRESENTED THE WASTE TO
YOUR FACILITY, IF KNOWN.
B. ENTER AN EXPLANATION OF HOW THE WASTE MOVEMENT WAS PRESENTED TO
YOUR FACILITY; WHY YOU BELIEVE THE WASTE IS HAZARDOUS AND HOW YOUR
FACILITY PLANS TO MANAGE THE WASTE. CONTINUE ON A SEPARATE BLANK SHEET
OF PAPER IF ADDITIONAL SPACE IS NEEDED.
DO NOT ATTACH MONITORING DATA.
APPENDIX III. -- EPA INTERIM PRIMARY DRINKING WATER STANDARDS
TABLE OMITTED
AS REQUIRED IN SECTION 265.93(B) THE OWNER OR OPERATOR MUST USE THE
STUDENT'S T-TEST TO DETERMINE STATISTICALLY SIGNIFICANT CHANGES IN THE
CONCENTRATION OR VALUE OF AN INDICATOR PARAMTER IN PERIODIC GROUND-WATER
SAMPLES WHEN COMPARED TO THE INITIAL BACKGROUND CONCENTRATION OR VALUE
OF THAT INDICATOR PARAMETERS (SPECIFIC CONDUCTANCE, TOTAL ORGANIC
CARBON, AND TOTAL ORGANIC HALOGEN) A SINGLE-TAILED STUDENT'S T-TEST MUST
BE USED TO TEST AT THE 0.01 LEVEL OF SIGNIFICANCE FOR SIGNIFICANT
INCREASES OVER BACKGROUND. THE DIFFERENCE TEST FOR PH MUST BE A
TWO-TAILED STUDENT'S T-TEST AT THE OVERALL 0.01 LEVEL OF SIGNIFICANCE.
THE STUDENT'S T-TEST INVOLVES CALCULATION OF THE VALUE OF A
T-STATISTIC FOR EACH COMPARISON OF THE MEAN (AVERAGE) CONCENTRATION OR
VALUE (BASED ON A MINIMUM OF FOUR REPLICATE MEASUREMENTS) OF AN
INDICATOR PARAMETER WITH ITS INITIAL BACKGROUND CONCENTRATION OR VALUE.
THE CALCULATED VALUE OF THE T-STATISTIC MUST THEN BE COMPARED TO THE
VALUE OF THE T-STATISTIC FOUND IN A TABLE FOR T-TEST OF SIGNIFICANCE AT
THE SPECIFIED LEVEL OF SIGNIFICANCE. A CALCULATED VALUE OF T WHICH
EXCEEDS THE VALUE OF T FOUND IN THE TABLE INDICATES A STATISTICALLY
SIGNIFICANT CHANGE IN THE CONCENTRATION OR VALUE OF THE INDICATOR
PARAMETER.
FORMULAE FOR CALCULATION OF THE T-STATISTIC AND TABLE FOR T-TEST OF
SIGNIFICANCE CAN BE FOUND IN MOST INTRODUCTORY STATISTICS TEXTS.
MANY HAZARDOUS WASTES, WHEN MIXED WITH OTHER WASTE OR MATERIALS AT A
HAZARDOUS WASTE FACILITY, CAN PRODUCE EFFECTS WHICH ARE HARMFUL TO HUMAN
HEALTH AND THE ENVIRONMENT, SUCH AS (1) HEAT OR PRESSURE, (2) FIRE OR
EXPLOSION, (3) VIOLENT REACTION, (4) TOXIC DUSTS, MISTS, FUMES, OR
GASES, OR (5) FLAMMABLE FUMES OR GASES.
BELOW ARE EXAMPLES OF POTENTIALLY INCOMPATIBLE WASTES, WASTE
COMPONENTS, AND MATERIALS, ALONG WITH THE HARMFUL CONSEQUENCES WHICH
RESULT FROM MIXING MATERIALS IN ONE GROUP WITH MATERIALS IN ANOTHER
GROUP. THE LIST IS INTENDED AS A GUIDE TO OWNERS OR OPERATORS OF
TREATMENT, STORAGE, AND DISPOSAL FACILITIES, AND TO ENFORCEMENT AND
PERMIT GRANTING OFFICIALS, TO INDICATE THE NEED FOR SPECIAL PRECAUTIONS
WHEN MANAGING THESE POTENTIALLY INCOMPATIBLE WASTE MATERIALS OR
COMPONENTS.
THIS LIST IS NOT INTENDED TO BE EXHAUSTIVE. AN OWNER OR OPERATOR
MUST, AS THE REGULATIONS REQUIRE, ADEQUATELY ANALYZE HIS WASTES SO THAT
HE CAN AVOID CREATING UNCONTROLLED SUBSTANCES OR REACTIONS OF THE TYPE
LISTED BELOW, WHETHER THEY ARE LISTED BELOW OR NOT.
IT IS POSSIBLE FOR POTENTIALLY INCOMPATIBLE WASTES TO BE MIXED IN A
WAY THAT PRECLUDES A REACTION (E.G., ADDING ACID TO WATER RATHER THAN
WATER TO ACID) OR THAT NEUTRALIZES THEM (E.G., A STRONG ACID MIXED WITH
A STRONG BASE), OR THAT CONTROLS SUBSTANCES PRODUCED (E.G., BY
GENERATING FLAMMABLE GASES IN A CLOSED TANK EQUIPPED SO THAT IGNITION
CANNOT OCCUR, AND BURNING THE GASES IN AN INCINERATOR).
800519
FEDERAL REGISTER PART 7
EPA, HAZARDOUS WASTE MANAGEMENT SYSTEM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
40 CFR PARTS 264 AND 265 FRL 1446-8 VOLUME 45 NUMBER 98
PART 105 OF 106
COSTLE D M ADMINISTRATOR
EPA
113469
REGULATION
IN THE LISTS BELOW, THE MIXING OF A GROUP A MATERIAL WITH A GROUP B
MATERIAL MAY HAVE THE POTENTIAL CONSEQUENCE AS NOTED.
POTENTIAL CONSEQUENCES: HEAT GENERATION; VIOLENT REACTION.
POTENTIAL CONSEQUENCES: FIRE OR EXPLOSION; GENERATION OF FLAMMABLE
HYDROGEN GAS.
POTENTIAL CONSEQUENCES: FIRE, EXPLOSION, OR HEAT GENERATION
GENERATION OF FLAMMABLE OR TOXIC GASES.
POTENTIAL CONSEQUENCES: FIRE, EXPLOSION, OR VIOLENT REACTION.
LISTS OMITTED
POTENTIAL CONSEQUENCES: FIRE, EXPLOSION, OR VIOLENT REACTION.
SOURCE: "LAW, REGULATIONS, AND GUIDELINES FOR HANDLING OF HAZARDOUS
WASTE." CALIFORNIA DEPARTMENT OF HEALTH, FEBRUARY 1975.
(FR DOC. 80-14309 FILED 5-10-80, 8:45 AM)
BILLING CODE 6560-01-M.
800519
FEDERAL REGISTER PART 8, VOLUME 45 NUMBER 98, PROPOSED RULE'S
EPA HAZARDOUS WASTE MANAGEMENT SYSTEM PROPOSED TO MODIFY 40 CFR PART
265, 264 SUBPART H, FINANCIAL REQUIREMENTS FOR OWNERS AND OPERATORS OF
HAZARDOUS WASTE MANAGEMENT FACILITIES, FRL 1459-7
PART 001 OF 20
COSTLE D M ADMINISTRATOR
EPA
113471
REGULATIONS
TITLE PAGE OMITTED.
800519
FEDERAL REGISTER PART 8, VOLUME 45 NUMBER 98, PROPOSED RULE'S
EPA HAZARDOUS WASTE MANAGEMENT SYSTEM PROPOSED TO MODIFY 40 CFR PART
265, 264 SUBPART H, FINANCIAL REQUIREMENTS FOR OWNERS AND OPERATORS OF
HAZARDOUS WASTE MANAGEMENT FACILITIES, FRL 1459-7
PART 002 OF 20
COSTLE D M ADMINISTRATOR
EPA
113472
REGULATIONS
AGENCY: ENVIRONMENTAL PROTECTION AGENCY.
ACTION: REVISION OF PROPOSED RULE.
SUMMARY: THIS PROPOSAL IS A REVISION OF REGULATIONS PROPOSED ON
DECEMBER 18, 1978 (43 FR 58995, 59006-7). UNDER THE REVISED PROPOSAL,
AS IN THE ORIGINAL, AN OWNER OR OPERATOR OF EACH HAZARDOUS WASTE
MANAGEMENT FACILITY WOULD HAVE TO PROVIDE ASSURANCE THAT FUNDS WILL BE
AVAILABLE WHEN NEEDED FOR PROPERLY CLOSING THE FACILITY AND, IN THE CASE
OF A DISPOSAL FACILITY, FOR MAINTAINING AND MONITORING IT AFTER CLOSURE.
THE REVISED PROPOSAL, HOWEVER, ALLOWS A NUMBER OF OPTIONS IN PROVIDING
SUCH ASSURANCES, WHILE THE ORIGINAL PROPOSAL HAD ONLY ONE OPTION, TRUST
FUNDS. THE REVISED PROVISIONS FOR FINANCIAL ASSURANCE ARE PROPOSED FOR
INCLUSION BOTH IN THE GENERAL STANDARDS TO BE USED IN PERMITTING (PART
264) AND IN STANDARDS FOR FACILITIES IN INTERIM STATUS (PART 265).
THE REVISED PROPOSAL ALSO INCLUDES A NEW REQUIREMENT FOR LIABILITY
INSURANCE FOR FACILITIES IN INTERIM STATUS. THE LIABILITY REQUIREMENTS
IN THE ORIGINAL PROPOSAL WERE ONLY FOR INCLUSION IN THE GENERAL
STANDARDS. THESE GENERAL STANDARDS HAVE NOT BEEN REVISED, BUT THE
COMMENT PERIOD FOR THEM IS REOPENED.
EPA IS REPROPOSING THIS RULE BECAUSE OF THE MANY NEW AND REVISED
PROVISIONS WHICH HAVE NOT BEEN SUBJECTED TO PUBLIC REVIEW. THE CHANGES
HAVE RESULTED FROM REANALYSES BY THE AGENCY IN RESPONSE TO PUBLIC
COMMENT ON THE ORIGINAL PROPOSAL.
DATES: COMMENTS ARE DUE ON OR BEFORE JULY 18, 1980. A PUBLIC
HEARING WILL BE HELD JULY 1, 1980 FROM 9 A.M. TO 5 P.M.
ADDRESSES: COMMENTS SHOULD BE ADDRESSED TO DEBORAH VILLARI, DOCKET
CLERK, OFFICE OF SOLID WASTE (WH-562), U.S. ENVIRONMENTAL PROTECTION
AGENCY, 401 M STREET SW., WASHINGTON, D.C. 20460, (202)755-9173.
COMMENTS SHOULD IDENTIFY THE REGULATORY DOCKET AS FOLLOWS: "SECTION
3004, FINANCIAL REQUIREMENTS".
THE OFFICIAL RECORD FOR THIS RULEMAKING IS AVAILABLE AT: ROOM 2711,
U.S. ENVIRONMENTAL PROTECTION AGENCY, 401 M STREET SW., WASHINGTON, D.C.
20460, AND IS AVAILABLE FOR VIEWING FROM 9 A.M. TO 4:30 P.M., MONDAY
THROUGH FRIDAY, EXCLUDING HOLIDAYS.
A PUBLIC HEARING WILL BE HELD AT THE HEW NORTH BUILDING AUDITORIUM,
330 INDEPENDENCE AVENUE SW., WASHINGTON, D.C., ON JULY 1, 1980, FROM 9
A.M. TO 5 P.M., WITH REGISTRATION FROM 8:30 TO 9 A.M. ANYONE WISHING TO
MAKE A STATEMENT AT THE HEARING SHOULD NOTIFY, IN WRITING: MS.
GERALDINE WYER, PUBLIC PARTICIPATION OFFICER, OFFICE OF SOLID WASTE
(WH-562), U.S. E.P.A., 401 M STREET SW., WASHINGTON, D.C. 20460.
ORAL AND WRITTEN COMMENTS MAY BE SUBMITTED AT THE PUBLIC HEARING.
PERSONS WHO WISH TO MAKE ORAL PRESENTATIONS MUST RESTRICT THEIR
PRESENTATIONS TO 10 MINUTES AND ARE ENCOURAGED TO HAVE WRITTEN COPIES OF
THEIR COMPLETE COMMENTS FOR INCLUSION IN THE OFFICIAL RECORD.
FOR FURTHER INFORMATION CONTACT: GEORGE A. GARLAND, CHIEF, ECONOMIC
AND POLICY ANALYSIS BRANCH, OFFICE OF SOLID WASTE (WH-565), U.S.
ENVIRONMENTAL PROTECTION AGENCY, 401 M STREET SW., WASHINGTON, D.C.
20460, (202)755-9190.
FOR INFORMATION ABOUT THE LIABILITY REQUIREMENTS, CONTACT HUGH
HOLMAN, ECONOMIC ANALYSIS DIVISION, OFFICE OF PLANNING AND EVALUATION
(PM-220), U.S. ENVIRONMENTAL PROTECTION AGENCY, 401 M STREET SW.,
WASHINGTON, D.C. 20460, (202)755-2677.
THIS REGULATION IS PROPOSED UNDER THE AUTHORITY OF SECTION 1006,
2002(A), AND 3004, OF THE SOLID WASTE DISPOSAL ACT, AS AMENDED BY THE
RESOURCE CONSERVATION AND RECOVERY ACT OF 1976 (RCRA), AS AMENDED, 42
USC 6905, 6912(A), AND 6924.
SECTION 3004(6) OF THE RESOURCE CONSERVATION AND RECOVERY ACT OF 1976
SPECIFICALLY REQUIRES EPA TO ESTABLISH FINANCIAL RESPONSIBILITY
STANDARDS APPLICABLE TO OWNERS AND OPERATORS OF HAZARDOUS WASTE
MANAGEMENT FACILITIES AS SUCH STANDARDS MAY BE -ECESSARY OR DESIRABLE TO
PROTECT HUMAN HEALTH AND THE ENVIRONMENT. EPA PROPOSED, ON DECEMBER 18,
1978 (43 FR 58995, 59006-7), FINANCIAL REQUIREMENTS INTENDED TO PROVIDE:
(1) ASSURANCE THAT FUNDS WILL BE AVAILABLE WHEN NEEDED TO CLOSE
HAZARDOUS WASTE MANAGEMENT FACILITIES PROPERLY AND TO MONITOR AND
MAINTAIN HAZARDOUS WASTE DISPOSAL FACILITIES AFTER CLOSURE; AND (2)
LIABILITY COVERAGE FOR INJURIES TO PEOPLE AND PROPERTY WHICH RESULT FROM
THE OPERATION OF HAZARDOUS WASTE MANAGEMENT FACILITIES.
THE NEED FOR REQUIREMENTS FOR FINANCIAL ASSURANCE OF CLOSURE AND
POSTCLOSURE CARE IS INDICATED BY THE NUMEROUS INSTANCES OF ENVIRONMENTAL
DAMAGE RESULTING FROM ABANDONMENT OF FACILITIES AND OTHER FAILURE TO
PROVIDE FOR CLOSURE AND POST-CLOSURE CARE IN A TIMELY MANNER. (SEVERAL
SUCH CASES ARE DESCRIBED IN THE BACKGROUND DOCUMENT FOR THE FINANCIAL
REQUIREMENTS.) THE LIKELIHOOD OF FAILURE TO PROVIDE ADEQUATELY FOR
CLOSURE AND POST-CLOSURE CARE IS INCREASED BY THE FACT THAT THE COSTS
OCCUR WHEN THE ECONOMIC VALUE OF THE FACILITY IS DIMINISHED OR
NONEXISTENT. FOR SOME DISPOSAL FACILITIES, POST-CLOSURE CARE MUST
EXTEND FOR DECADES BEYOND THE OPERATING LIFE OF THE FACILITY. EPA
BELIEVES THAT SIGNIFICANT NUMBERS OF OWNERS AND OPERATORS MAY LACK THE
ABILITY TO PROVIDE EFFECTIVELY FOR CLOSURE AND POST-CLOSURE COSTS UNLESS
THEY MAKE PROVISION FOR THEM DURING THE ACTIVE OPERATING LIFE OF THE
FACILITY.
THE AGENCY BELIEVES LIABILITY REQUIREMENTS ARE NECESSARY BECAUSE OF
THE POTENTIAL FOR DAMAGE TO PEOPLE AND PROPERTY FROM HAZARDOUS WASTE
MANAGEMENT OPERATIONS, AS INDICATED BY ACTUAL DAMAGE CASES AND THE
ESSENTIAL NATURE OF HAZARDOUS WASTES. IF THE FACILITY OWNER OR OPERATOR
HAS INSUFFICIENT FINANCIAL RESOURCES TO PAY FOR DAMAGES, PRIVATE PARTIES
OR GOVERNMENT MAY BE FORCED TO BEAR THE COSTS.
THE BASIC PURPOSES OF THE FINANCIAL REQUIREMENTS HAVE NOT CHANGED
SINCE THE ORIGINAL PROPOSAL, BUT THE PROVISIONS FOR ACHIEVING THESE
PURPOSES HAVE BEEN EXPANDED AND ALTERED AS A RESULT OF REANALYSES
FOLLOWING PUBLIC COMMENT ON THE ORIGINAL PROPOSAL. AS EXPLAINED IN
GREATER DETAIL BELOW, THE REVISED PROPOSAL WOULD ALLOW OWNERS AND
OPERATORS TO CHOOSE FROM A NUMBER OF MECHANISMS IN PROVIDING FINANCIAL
ASSURANCE FOR CLOSURE AND POST-CLOSURE CARE, INCLUDING TRUST FUNDS,
SURETY BONDS, LETTERS OF CREDIT, GUARANTIES, A FINANCIAL TEST, AND A
REVENUE TEST FOR MUNICIPALITIES. THE PROVISIONS FOR THE ONE OPTION THAT
WAS AVAILABLE IN THE ORIGINAL PROPOSAL, THE TRUST FUND, HAVE BEEN
RESTRUCTURED TO BE LESS BURDENSOME TO OWNERS AND OPERATORS. STANDARD
FORMS FOR THE FINANCIAL INSTRUMENTS HAVE BEEN ADDED TO THE PROPOSAL.
THE REVISED REQUIREMENTS FOR FINANCIAL ASSURANCE FOR CLOSURE AND
POST-CLOSURE CARE ARE PROPOSED FOR INCLUSION IN BOTH THE GENERAL
STANDARDS TO BE USED IN THE PERMITTING OF HAZARDOUS WASTE MANAGEMENT
FACILITIES (40 CFR PART 264) AND THE INTERIM STATUS STANDARDS (PART
265). THE HEADINGS AND CITATIONS ARE NUMBERED FOR INCLUSION IN PART 265
SINCE THE REGULATIONS ON CLOSURE, POST-CLOSURE CARE, COST-ESTIMATING,
AND APPLICABILITY TO WHICH THE PROPOSED REGULATIONS MUST REFER HAVE BEEN
PROMULGATED ONLY FOR PART 265 (AND APPEAR IN TODAY'S FEDERAL REGISTER).
FOR INCLUSION IN PART 264, THESE CITATIONS WOULD BE CHANGED AND OTHER
MINOR MODIFICATIONS WOULD BE MADE, E.G., THE REQUIREMENT THAT THE
ASSURANCE MECHANISMS BE ESTABLISHED BY THE EFFECTIVE DATE OF THE
REGULATIONS WOULD BE DROPPED SINCE THE GENERAL STANDARDS MUST BE
APPLICABLE TO NEW FACILITIES SEEKING A PERMIT AFTER THE EFFECTIVE DATE.
800519
FEDERAL REGISTER PART 8, VOLUME 45 NUMBER 98, PROPOSED RULE'S
EPA HAZARDOUS WASTE MANAGEMENT SYSTEM PROPOSED TO MODIFY 40 CFR PART
265, 264 SUBPART H, FINANCIAL REQUIREMENTS FOR OWNERS AND OPERATORS OF
HAZARDOUS WASTE MANAGEMENT FACILITIES, FRL 1459-7
PART 003 OF 20
COSTLE D M ADMINISTRATOR
EPA
113473
REGULATIONS
THE REVISED PROPOSAL ALSO ADDS A LIABILITY INSURANCE REQUIREMENT FOR
FACILITIES IN INTERIM STATUS. THE INSURANCE WOULD COVER DAMAGE CLAIMS
RESULTING FROM SUDDEN ACCIDENTS. THE GENERAL STATUS LIABILITY
REQUIREMENTS IN THE ORIGINAL PROPOSAL, COVERING BOTH SUDDEN AND
NONSUDDEN EVENTS, ARE NOT PART OF THE REPROPOSAL, BUT THE PUBLIC COMMENT
PERIOD FOR THEM IS REOPENED, TO RUN CONCURRENTLY WITH THE COMMENT PERIOD
FOR THE REPROPOSAL.
OTHER PORTIONS OF THE ORIGINAL PROPOSAL NOT INCLUDED IN THE
REPROPOSAL ARE: (1) THE REQUIREMENTS FOR ESTIMATING THE COSTS OF
CLOSURE AND POST-CLOSURE CARE, WHICH, WITH AN "APPLICABILITY" SECTION,
ARE PROMULGATED IN TODAY'S FEDERAL REGISTER; (2) THE TRANSFER OF
OWNERSHIP PROVISIONS, WHICH ARE DROPPED FROM THESE REQUIREMENTS SINCE
THIS TOPIC IS MORE APPROPRIATELY COVERED BY THE CONSOLIDATED PERMIT
REGULATIONS, 40 CFR PART 122, SUBPARTS A AND B, WHICH ARE PROMULGATED
TODAY; AND (3) THE ACCESS AND DEFAULT PROVISIONS, WHICH ARE DROPPED
SINCE SECTIONS 3007 AND 3008 OF RCRA CONTAIN ACCESS AND ENFORCEMENT
PROVISIONS THAT APPLY TO ALL REGULATIONS UNDER SUBTITLE C OF RCRA, AND
THE AGENCY HAS DECIDED THAT SPECIAL PROVISIONS FOR FINANCIAL
RESPONSIBILITY REQUIREMENTS WOULD BE INAPPROPRIATE.
THE APPLICABILITY OF THE FINANCIAL REQUIREMENTS FOR HAZARDOUS WASTE
FACILITY OWNERS AND OPERATORS IS SET FORTH IN 40 CFR 265.140, WHICH IS
PROMULGATED TODAY. THE PROPOSED REGULATION, AS REVISED, INCLUDES
AMENDMENTS TO SECTION 265.140 TO COVER APPLICABILITY OF THE PROPOSED
FINANCIAL REQUIREMENTS. ESSENTIALLY, THE FINANCIAL REQUIREMENTS WOULD
APPLY TO OWNERS AND OPERATORS OF ALL HAZARDOUS WASTE FACILITIES, AND THE
REQUIREMENTS FOR POST-CLOSURE CARE WOULD APPLY ONLY TO OWNERS AND
OPERATORS OF DISPOSAL FACILITIES. STATES AND THE FEDERAL GOVERNMENT ARE
EXEMPT FROM THE FINANCIAL REQUIREMENTS.
UNDER SUBPART G OF THE PART 265 REGULATIONS PROMULGATED TODAY, AN
OWNER OR OPERATOR OF EACH HAZARDOUS WASTE FACILITY MUST PREPARE A
CLOSURE PLAN FOR THE FACILITY. THE OWNER OR OPERATOR MUST ALSO PREPARE
A COST ESTIMATE FOR CLOSURE OF HIS FACILITY AT THE POINT IN THE
FACILITY'S OPERATING LIFE WHEN THE EXTENT AND MANNER OF ITS OPERATION
WOULD MAKE CLOSURE THE MOST EXPENSIVE, AS INDICATED BY ITS CLOSURE PLAN;
HE MUST ADJUST THE ESTIMATE FOR INFLATION ANNUALLY AND PREPARE A NEW
ESTIMATE WHENEVER A CHANGE IN THE CLOSURE PLAN AFFECTS THE COST OF
CLOSURE (SEE SECTION 265.142).
THE ORIGINALLY PROPOSED INTERIM STATUS STANDARD FOR FINANCIAL
ASSURANCE FOR CLOSURE REQUIRED THAT THE OWNER OR OPERATOR MAKE A CASH
DEPOSIT FOR THE ENTIRE AMOUNT OF THE CLOSURE COST ESTIMATE INTO A
CLOSURE TRUST FUND ON THE EFFECTIVE DATE OF THE REGULATIONS; THE
GENERAL STANDARD REQUIRED AN OWNER OR OPERATOR TO MAKE A CASH DEPOSIT
EQUAL TO THE COST ESTIMATE FOR CLOSURE, MULTIPLIED BY THE APPROPRIATE
"PRESENT VALUE FACTOR," INTO A CLOSURE TRUST FUND AS A CONDITION OF
RECEIVING A PERMIT. THE PRESENT VALUE FACTOR ACCOUNTED FOR GROWTH OF
THE FUND OVER OPERATING LIFE AT A 2 PERCENT PER ANNUM REAL INTEREST RATE
(INTEREST MINUS INFLATION). A NUMBER OF COMMENTERS SAID THAT OWNERS AND
OPERATORS OF MANY FACILITIES COULD NOT AFFORD TO COMPLY WITH THESE
REQUIREMENTS. THEY SUGGESTED THAT MANY FACILITIES WOULD HAVE TO CLOSE,
EXACERBATING THE EXPECTED SHORTFALL IN HAZARDOUS WASTE MANAGEMENT
CAPACITY. THE AGENCY BELIEVES THAT DEPOSITING THE FULL AMOUNT OF THE
CLOSURE COST IN THE TRUST AT THE BEGINNING MAY CAUSE INSOLVENCY IN A FEW
CASES REPRESENTING A RELATIVELY SMALL PERCENTAGE OF CAPACITY. HOWEVER,
NOT BEING WILLING TO RISK AGGRAVATING A POSSIBLE CAPACITY SHORTFALL, EPA
PROPOSES TO ALLOW THE CLOSURE TRUST FUND TO BUILD UP OVER THE EXPECTED
LIFE OF THE SITE OR 20 YEARS, WHICHEVER PERIOD IS SHORTER. THE REVISED
PROPOSED REQUIREMENTS FOR THE TRUST FUND INCLUDE PROVISIONS FOR
ADJUSTING THE ANNUAL PAYMENTS IN RESPONSE TO INFLATION, CHANGES IN THE
CLOSURE COST ESTIMATE, AND CHANGES IN THE VALUE OF SECURITIES IN THE
FUND.
AS NOTED ABOVE, THE ORIGINALLY PROPOSED GENERAL STANDARD FOR THE
TRUST FUND ALLOWED ADJUSTMENT OF THE LUMP-SUM AMOUNT TO BE DEPOSITED ON
THE BASIS THAT THE FUND WOULD EARN A REAL INTEREST RATE OF 2 PERCENT.
SOME COMMENTERS FELT THAT THIS RATE WAS TOO LOW, WHILE OTHERS FELT IT
WAS TOO HIGH. EPA AGREES THAT A 2 PERCENT REAL INTEREST RATE IS TOO
HIGH. PROVISIONS OF THE REVISED PROPOSAL ARE BASED ON A ZERO REAL
INTEREST RATE TO ADEQUATELY ACCOUNT FOR THE EFFECTS OF LONG-TERM
INFLATION AND TRUSTEE FEES. BASED ON LONG-TERM DATA, THE AGENCY
BELIEVES THAT OVER AN EXTENDED PERIOD, THE PURCHASING POWER OF THE
DEPOSITED FUNDS IS LIKELY TO BE STATIC, I.E., THE NOMINAL INTEREST
REALIZED WILL BE CANCELLED OUT BY INFLATION AND BY TRUSTEE FEES.
THE ORIGINAL PROPOSAL DID NOT ALLOW REIMBURSEMENT OF THE OWNER OR
OPERATOR FOR CLOSURE EXPENSES FROM THE TRUST FUND UNTIL CLOSURE WAS
COMPLETED TO THE SATISFACTION OF THE REGIONAL ADMINISTRATOR. COMMENTERS
STATED THAT THIS PROVISION IMPOSED HARDSHIP ON OWNERS AND OPERATORS
SINCE THEY WOULD HAVE TO PAY OUT TWICE FOR CLOSURE BEFORE BEING
REIMBURSED. THE AGENCY AGREES THAT IT WOULD BE PREFERABLE TO REIMBURSE
OWNERS AND OPERATORS AS CLOSURE IS ACCOMPLISHED. UNDER THE REVISED
PROPOSAL THE OWNER OR OPERATOR WOULD BE REIMBURSED FOR CLOSURE BILLS
SUBMITTED BEFORE CLOSURE WAS COMPLETED IF THE REGIONAL ADMINISTRATOR
FOUND THEM TO BE IN ACCORDANCE WITH THE CLOSURE PLAN AND IF THE AMOUNT
REMAINING IN THE TRUST FUND AFTER SUCH PAYMENT WOULD BE AT LEAST 20
PERCENT OF THE AMOUNT IN THE FUND WHEN CLOSURE BEGAN. THE 20 PERCENT
REMAINING WOULD PROVIDE REASONABLE FINANCIAL ASSURANCE FOR CLOSURE
ACTIVITIES THAT MAY BE FOUND TO BE NECESSARY AFTER THE OWNER OR OPERATOR
AND AN INDEPENDENT REGISTERED PROFESSIONAL ENGINEER HAVE CERTIFIED THAT
CLOSURE WAS COMPLETED IN ACCORDANCE WITH THE CLOSURE PLAN. THE REGIONAL
ADMINISTRATOR MUST RELEASE ALL FUNDS WITHIN 30 DAYS OF RECEIVING SUCH
CERTIFICATIONS UNLESS HE HAS REASON TO BELIEVE CLOSURE WAS NOT DONE
ACCORDING TO THE CLOSURE PLAN.
EPA RECEIVED NUMEROUS COMMENTS, ESPECIALLY FROM INDUSTRY, SUGGESTING
THAT OTHER FINANCIAL ASSURANCE MECHANISMS IN ADDITION TO THE TRUST
SHOULD BE ALLOWED. COMMENTERS STATED THAT ALLOWING ONLY TRUST FUNDS IS
UNNECESSARY AND FINANCIALLY BURDENSOME. THE AGENCY NOW PROPOSES TO
ALLOW A NUMBER OF MECHANISMS INCLUDING SURETY BONDS, LETTERS OF CREDIT,
GUARANTIES, AND TESTS OF FINANCIAL STRENGTH, AS WELL AS TRUST FUNDS.
EPA'S MAJOR CONCERN WITH RESPECT TO SURETY BONDS HAS BEEN THAT THEY
COULD BE QUICKLY CANCELLED AND THUS DID NOT ASSURE COVERAGE OF CLOSURE.
AS THE AGENCY HAS GONE THROUGH THE PROCESS OF REVISING ITS PROPOSED
REGULATIONS, HOWEVER, IT HAS LEARNED THAT CANCELLATION PROVISIONS THAT
ASSURE COVERAGE OF CLOSURE MAY BE OBTAINABLE BY THE REGULATED COMMUNITY.
THE SURETY BOND PROVISIONS IN THE REPROPOSAL INCLUDE TWO CANCELLATION
CLAUSES. FIRST, THE OWNER OR OPERATOR AND EPA MUST RECEIVE 90 DAYS'S
NOTICE OF CANCELLATION FROM THE SURETY COMPANY; DURING THIS TIME, IF
THE OWNER OR OPERATOR IS UNABLE TO ESTABLISH OTHER FINANCIAL ASSURANCE,
THE AGENCY MAY ORDER CLOSURE. A SECOND CLAUSE REQUIRES THAT THE BOND
MUST REMAIN IN EFFECT UNTIL COMPLETION OF CLOSURE ONCE CLOSURE BEGINS OR
IS ORDERED TO BEGIN BY THE REGIONAL ADMINISTRATOR.
800519
FEDERAL REGISTER PART 8, VOLUME 45 NUMBER 98, PROPOSED RULE'S
EPA HAZARDOUS WASTE MANAGEMENT SYSTEM PROPOSED TO MODIFY 40 CFR PART
265, 264 SUBPART H, FINANCIAL REQUIREMENTS FOR OWNERS AND OPERATORS OF
HAZARDOUS WASTE MANAGEMENT FACILITIES, FRL 1459-7
PART 004 OF 20
COSTLE D M ADMINISTRATOR
EPA
113474
REGULATIONS
EPA BELIEVES THAT THESE PROVISIONS WOULD MAKE THE SURETY BOND AN
ACCEPTABLE ALTERNATIVE MECHANISM.
A BANK LETTER OF CREDIT ASSURES THAT A BANK WILL MAKE AVAILABLE A
SPECIFIC SUM OF MONEY OVER A SPECIFIC TIME PERIOD ON BEHALF OF ITS
CUSTOMER TO THE PARTY (BENEFICIARY) IN WHOSE FAVOR THE LETTER IS
WRITTEN. THE BENEFICIARY CAN DRAW ON THE CREDIT BY PRESENTING DOCUMENTS
SPECIFIED IN THE LETTER. UNDER THE PROPOSED REGULATION, A LETTER OF
CREDIT, PAYABLE TO THE REGIONAL ADMINISTRATOR, WOULD BE OBTAINED BY A
FACILITY OWNER OR OPERATOR IN THE AMOUNT OF THE CLOSURE COST ESTIMATE.
THE LETTER OF CREDIT WOULD CONTAIN AN AUTOMATIC ONE-YEAR EXTENSION
CLAUSE; IF THE BANK DECIDES NOT TO RENEW THE CREDIT, IT MUST GIVE 60
DAYS' NOTCIE TO THE REGIONAL ADMINISTRATOR AND THE OWNER OR OPERATOR.
IF THE OWNER OR OPERATOR FAILS TO ESTABLISH OTHER FINANCIAL ASSURANCE
DURING THIS PERIOD, OR IF THE OWNER OR OPERATOR FAILS TO CARRY OUT
CLOSURE IN ACCORDANCE WITH THE CLOSURE PLAN, THE REGIONAL ADMINISTRATOR
COULD DRAW ON THE CREDIT; THE FUNDS WOULD GO INTO AN ESCROW ACCOUNT
FROM WHICH CLOSURE BILLS WOULD BE PAID.
THE REVISED PROPOSAL INCLUDES A FINANCIAL TEST CONSISTING OF CRITERIA
FOR NET WORTH, NET WORKING CAPITAL, AND LEVEL OF INDEBTEDNESS. BY
MEETING THESE CRITERIA, FIRMS COULD SATISFY THE REQUIREMENT FOR
FINANCIAL ASSURANCE FOR CLOSURE. THE PURPOSE OF THE TEST IS NOT TO
PREDICT WHETHER A FIRM WILL GO BANKRUPT BUT RATHER TO INDICATE WHETHER
IT WILL HAVE ADEQUATE FUNDS TO ESTABLISH A TRUST FUND OR OTHER ALLOWABLE
INSTRUMENT TO PROVIDE FINANCIAL ASSURANCE FOR CLOSURE IF ITS FINANCIAL
POSITION DETERIORATES BEYOND THE ACCEPTABLE LEVELS.
UNDER THE PROPOSED REGULATION AN ENTITY MEETING THE FINANCIAL TEST
MAY GUARANTEE ANOTHER ENTITY'S COMPLIANCE WITH THE CLOSURE REGULATIONS,
AND THIS GUARANTEE WOULD QUALIFY AS FINANCIAL ASSURANCE FOR CLOSURE.
FOR REASONS EXPLAINED IN THE PREAMBLE TO 40 CFR PARTS 264 AND 265,
FACILITIES OWNED OR OPERATED BY STATES OR THE FEDERAL GOVERNMENT ARE
EXEMPT FROM FINANCIAL REQUIREMENTS UNDER SECTION 265.140(C). SINCE
LOCAL GOVERNMENTS CAN, AND SOMETIMES DO, BECOME INSOLVENT, HOWEVER, THE
AGENCY HAS INCLUDED A SIMPLE REVENUE TEST FOR MUNICIPALITIES IN THE
REPROPOSED REGULATION.
FOR ADDED FLEXIBILITY, THE REVISED PROPOSAL EXPLICITLY ALLOWS AN
OWNER OR OPERATOR TO COMBINE INSTRUMENTS (E.G., COVERAGE OF HALF THE
CLOSURE COST ESTIMATE BY A TRUST FUND, HALF BY A LETTER OF CREDIT),
COVER MORE THAN ONE FACILITY WITH A SINGLE MECHANISM, OR COVER BOTH
CLOSURE AND POST-CLOSURE CARE WITH A SINGLE MECHANISM.
UNDER THE ORIGINALLY PROPOSED INTERIM STATUS STANDARDS, THE REGIONAL
ADMINISTRATOR COULD ALLOW PARTIAL COMPLIANCE WITH THE FINANCIAL
ASSURANCE REQUIREMENTS IF FULL COMPLIANCE WOULD RENDER THE OWNER OR
OPERATOR INSOLVENT. THIS PROVISION IS NOT INCLUDED IN THE REVISED
PROPOSAL SINCE IT COULD WORK AGAINST THE MAIN FUNCTION OF THE
REQUIREMENTS AS MINIMUM STANDARDS FOR FINANCIAL RESPONSIBILITY ON THE
PART OF OWNERS AND OPERATORS. IT WOULD ALSO IMPOSE A SEVERE
ADMINISTRATIVE BURDEN ON THE AGENCY, SINCE THE FINANCIAL STATUS OF
OWNERS AND OPERATORS APPLYING FOR SUCH RELIEF WOULD HAVE TO BE
EVALUATED. FURTHERMORE, EPA BELIEVES THAT BY CHANGING THE TRUST FUND TO
MAKE IT A LESS COSTLY MECHANISM, AND BY PROVIDING FOR OTHER FINANCIAL
MECHANISMS WHICH, FOR MANY OWNERS AND OPERATORS, MAY BE CONSIDERABLY
CHEAPER TO USE THAN THE TRUST FUND, ANY NEED FOR SUCH A PROVISION IS
SUBSTANTIALLY REDUCED.
SUBPART G OF THE PART 265 REGULATIONS PROMULGATED TODAY REQUIRES THAT
AN OWNER OR OPERATOR OF EACH HAZARDOUS WASTE DISPOSAL FACILITY PREPARE A
PLAN FOR 30 YEARS OF POST-CLOSURE CARE. THE OWNER OR OPERATOR MUST
PREPARE, AND KEEP CURRENT, A COST ESTIMATE FOR 30 YEARS OF POST-CLOSURE
CARE OF THE FACILITY (SEE SECTION 265.144).
THE ORIGINAL PROPOSED REGULATION FOR FINANCIAL ASSURANCE FOR
POST-CLOSURE CARE REQUIRED ESTABLISHMENT OF A TRUST FUND BUILT UP OVER
THE LIFE OF THE FACILITY. ASSURANCE OF POST-CLOSURE CARE FOR 20 YEARS
WAS REQUIRED SINCE THE BASIC PERIOD OF POST-CLOSURE CARE UNDER THE
PROPOSED POST-CLOSURE REGULATIONS WAS 20 YEARS. AGAIN, A 2 PERCENT REAL
INTEREST RATE WAS ASSUMED IN DIRECTING THE CALCULATION OF THE AMOUNT TO
BE PAID IN. THE ISSUES AND COMMENTS RECEIVED ON THE POST-CLOSURE TRUST
FUND REQUIREMENTS WERE VERY SIMILAR TO THOSE RECEIVED ON THE CLOSURE
TRUST REQUIREMENTS. THE AGENCY'S RESPONSE IN THE REVISED PROPOSAL IS
VERY MUCH THE SAME, AND THUS THE POST-CLOSURE TRUST PROVISIONS ARE QUITE
SIMILAR TO THOSE OF THE CLOSURE TRUST PROVISIONS AS REVISED. THE OWNER
OR OPERATOR WOULD BE REIMBURSED FOR POST-CLOSURE COSTS IF THEY ARE IN
ACCORDANCE WITH THE POST-CLOSURE PLAN. AT THE END OF 30 YEARS OF
POST-CLOSURE CARE (OR EARLIER IF THE REGIONAL ADMINISTRATOR REDUCES THE
POST-CLOSURE CARE PERIOD REQUIRED OF THE FACILITY), ANY FUNDS REMAINING
IN THE TRUST WOULD BE RETURNED TO THE OWNER OR OPERATOR.
IN THE REVISED PROPOSAL SURETY BONDS AND LETTERS OF CREDIT HAVE BEEN
ADDED AS ACCEPTABLE FINANCIAL INSTRUMENTS FOR ASSURING POST-CLOSURE
CARE. THESE MAY BE WRITTEN SO THAT THEY ASSURE LUMP-SUM POST-CLOSURE
FUNDS AT CLOSURE, OR THEY MAY ASSURE THAT THE FUNDS WILL BE AVAILABLE AT
ANY POINT DURING THE POST-CLOSURE PERIOD SHOULD THE OWNER OR OPERATOR
DEFAULT. A FINANCIAL TEST, GUARANTY, AND A REVENUE TEST FOR
MUNICIPALITIES ARE ALSO BEING ALLOWED AS MEANS OF ASSURING POST-CLOSURE
CARE.
ALL THE BASIC METHODS FOR PROVIDING FINANCIAL ASSURANCE THAT HAVE
BEEN ADDED SINCE THE ORIGINAL PROPOSAL WERE AMONG THOSE SUGGESTED BY
COMMENTERS ON THE ORIGINAL PROPOSAL. THERE WERE A NUMBER OF OTHER
MECHANISMS SUGGESTED THAT ARE NOT IN THE REPROPOSAL, HOWEVER.
THE ESCROW ACCOUNT HAS BEEN CONSIDERED BY THE AGENCY, BUT WAS NOT
INCLUDED IN THE REPROPOSAL BECAUSE IT WOULD REQUIRE THE REGIONAL
ADMINISTRATOR TO BECOME A SIGNATORY TO THE AGREEMENT AND MIGHT PRESENT
OTHER ADMINISTRATIVE BURDENS WITHOUT OFFERING SIGNIFICANT ADVANTAGE OVER
THE OTHER INSTRUMENTS ALLOWED. THE ESCROW ACCOUNT IS USED IN THE
REPROPOSED REGULATIONS AS A MEANS OF HOLDING FUNDS FOLLOWING A DEFAULT,
SINCE THIS USE OF ESCROWS DONES NOT INVOLVE THE REGIONAL ADMINISTRATOR
AS A SIGNATORY.
A NATIONAL FUND BASED ON ASSESSMENTS ON OWNERS AND OPERATORS AND USED
TO COVER DEFAULTS WAS SUGGESTED BY SEVERAL COMMENTERS. USE OF SUCH A
METHOD WOULD CLEARLY REQUIRE SPECIAL LEGISLATION. EPA IS CONSIDERERING
PROPOSAL OF LEGISLATION FOR A NATIONAL FUND THAT MAY INCLUDE COVERAGE OF
DEFAULTS IN PROVIDING POST-CLOSURE CARE, AS WELL AS COVERAGE OF
POST-CLOSURE LIABILITY.
OTHER MECHANISMS SUGGESTED INCLUDED PLEDGES OF SECURITIES, LIENS
AGAINST LAND AND REAL IMPROVEMENTS, INTEREST-BEARING ACCOUNTS IN
FINANCIAL INSTITUTIONS, AND SINKING FUNDS. THESE WERE NOT INCLUDED
BECAUSE THE AGENCY CONCLUDED THAT THEY SUFFERED FROM ONE OR MORE OF THE
FOLLOWING SHORTCOMINGS: THEIR STATUS IS UNCERTAIN IN THE EVENT OF
FINANCIAL FAILURE; THEY WOULD IMPOSE UNREASONABLE ADMINISTRATIVE
BURDENS ON THE AGENCY; THEY COULD BE CANCELLED QUICKLY, PROVIDING NO
LONG-TERM GUARANTEE OF FINANCIAL ASSURANCE; OR THEY DEPEND ON LONG-TERM
SOLVENCY OF THE OWNER OR OPERATOR.
THE REPROPOSAL INCLUDES AN INTERIM STATUS REQUIREMENT FOR LIABILITY
INSURANCE DURING OPERATING LIFE. UNDER THIS REQUIREMENT AN OWNER OR
OPERATOR OF EACH HAZARDOUS WASTE TREATMENT, STORAGE, OR DISPOSAL
FACILITY MUST SHOW EVIDENCE OF A MINIMUM OF $1 MILLION OF LIABILITY
INSURANCE PER OCCURRENCE PER FIRM WITH A $2 MILLION ANNUAL AGGREGATE,
FOR SUDDEN AND ACCIDENTAL OCCURRENCES (EXCLUSIVE OF LEGAL DEFENSE
COSTS).
800519
FEDERAL REGISTER PART 8, VOLUME 45 NUMBER 98, PROPOSED RULE'S
EPA HAZARDOUS WASTE MANAGEMENT SYSTEM PROPOSED TO MODIFY 40 CFR PART
265, 264 SUBPART H, FINANCIAL REQUIREMENTS FOR OWNERS AND OPERATORS OF
HAZARDOUS WASTE MANAGEMENT FACILITIES, FRL 1459-7
PART 005 OF 20
COSTLE D M ADMINISTRATOR
EPA
113475
REGULATIONS
EPA TODAY ALSO REOPENS THE COMMENT PERIOD ON THE GENERAL STANDARDS
FOR LIABILITY COVERAGE PROPOSED DECEMBER 18, 1978 (43 FR 59007). THE
PROPOSED GENERAL STANDARDS DIFFER FROM THE INTERIM STATUS REQUIREMENT
PROPOSED TODAY, FOR REASONS DISCUSSED BELOW, THE FINAL GENERAL STANDARDS
AND INTERIM STATUS STANDARDS WILL BE REVISED IN PROMULGATION TO MAKE
THEM CONSISTENT AS FAR AS INSURANCE FOR SUDDEN ACCIDENTS IS CONCERNED.
THE GENERAL STANDARDS PROPOSED IN DECEMBER 1978 REQUIRED EACH OWNER
OR OPERATOR TO MAINTAIN LIABILITY INSURANCE FOR BOTH SUDDEN AND
ACCIDENTAL OCCURRENCES AND FOR NONSUDDEN AND ACCIDENTAL OCCURRENCES.
THE INTERIM STATUS REGULATIONS PROPOSED AT THAT TIME DID NOT INCLUDE ANY
INSURANCE REQUIREMENT. THOUGH COGNIZANT OF THE NEED FOR FINANCIAL
RESPONSIBILITY FOR THIRD-PARTY CLAIMS DURING INTERIM STATUS, EPA WAS
CONCERNED THAT LIABILITY INSURANCE WOULD NOT BE MADE AVAILABLE TO
FACILITIES MANAGING HAZARDOUS WASTE UNTIL THEY COULD SHOW COMPLIANCE
WITH PERMIT REQUIREMENTS. ANALYSIS PERFORMED SINCE THE DECEMBER 1978
PROPOSAL SUGGESTS THAT MANY FIRMS FOLLOWING GOOD BUSINESS MANAGEMENT
PRACTICES ALREADY POSSESS LIABILITY INSURANCE COVERING SUDDEN ACCIDENTS.
OTHER FIRMS THAT FOLLOW GOOD MANAGEMENT PRACTICES SHOULD EASILY BE ABLE
TO INCREASE THEIR COVERAGE TO THE REQUISITE AMOUNT OR TO OBTAIN COVERAGE
IN THE EVENT THAT THEY DO NOT CURRENTLY CARRY SUCH INSURANCE.
SUDDEN ACCIDENTS THAT CAUSE DAMAGE TO THIRD PARTIES ARE CLEARLY A
POSSIBILITY DURING THE OPERATION OF A HAZARDOUS WASTE MANAGEMENT
FACILITY. AN ANALYSIS OF THE 90 INCIDENTS OF DAMAGE OCCURRING ON
HAZARDOUS WASTE MANAGEMENT SITES IN THE EPA DAMAGE REPORT FILES SHOWED
THAT DAMAGE OCCURRED FROM SUDDEN EVENTS IN 15 OF THE INCIDENTS.
FACILITIES INVOLVED IN SUDDEN ACCIDENTS WERE BOTH "ON-SITE" (ADJACENT TO
MANUFACTURING FACILITIES) AND OFF-SITE, AND WERE OWNED BY SMALL,
INDEPENDENT OPERATORS AS WELL AS BY LARGE CORPORATIONS.
THE ANALYSIS OF LIABILITY COVERAGE HAS CONFIRMED THAT COVERAGE FOR
NONSUDDEN OCCURRENCES MAY NOT BE AVAILABLE AT THIS TIME TO ALL FIRMS
PRIOR TO COMPLIANCE WITH PERMIT REQUIREMENTS. MOST INSURANCE COMPANIES
DO NOT CURRENTLY PROVIDE COVERAGE OF NONSUDDEN OCCURRENCES; MOST THAT
DO PROVIDE COVERAGE RESTRICT IT TO THEIR CLIENTS WHO ARE LARGE AND
WELL-MANAGED. CONSEQUENTLY, FOR THE INTERIM STATUS PERIOD, THE AGENCY
HAS DECIDED TO PROPOSE THAT INSURANCE COVERAGE BE REQUIRED, BUT ONLY FOR
DAMAGES FROM SUDDEN AND ACCIDENTAL INCIDENTS.
THE ANALYSIS SUGGESTS THAT THE REQUIRED INSURANCE CAN BE OBTAINED AT
A REASONABLE COST. THE COST OF LIABILITY INSURANCE VARIES CONSIDERABLY
WITH THE INHERENT RISK OF THE ACTIVITY INSURED, THE MANAGEMENT PRACTICES
OF THE FIRM, AND THE PAST ACCIDENT RECORD OF THE FIRM. THE COST OF
ANNUAL COVERAGE FOR SUDDEN ACCIDENTS IS LIKELY TO RANGE FROM $10-20,000
FOR A SMALL "AVERAGE RISK" WASTE DISPOSAL FIRM (WITH ANNUAL REVENUES OF
$1 MILLION OR LESS) AND WOULD INCREASE, THOUGH AT A DECREASING RATE, FOR
LARGER SIZED FIRMS. THIS COST OF COVERAGE IS ESTIMATED TO BE 1-3
PERCENT OF ANNUAL REVENUES FOR SMALL FIRMS. IF A SMALL FIRM IS DEEMED
TO POSE GREATER RISKS, HOWEVER, IT COULD E-D UP PAYING 5-10 PERCENT OF
ITS REVENUES FOR INSURANCE. A LARGE HIGH-RISK WASTE DISPOSAL FIRM IS
LIKELY TO PAY LESS THAN 1 PERCENT OF ITS REVENUES FOR INSURANCE
COVERAGE. ADDITIONALLY, THE COST OF COVERAGE FOR A FIRM THAT ONLY
STORES WASTE SHOULD BE LESS THAN THE COST OF COVERAGE FOR WASTE DISPOSAL
FIRMS. THE AGENCY BELIEVES THAT THE FIRMS THAT DO NOT CURRENTLY HAVE
THIS COVERAGE OR DO NOT HAVE IT IN THE REQUISITE AMOUNT SHOULD BE ABLE
TO SECURE IT AT REASONABLE COST.
IN ADDITION TO NOT REQUIRING COVERAGE FOR NONSUDDEN EVENTS, THE
LIABILITY INSURANCE REQUIREMENT FOR THE INTERIM STATUS PERIOD PROPOSED
HERE DIFFERS FROM THE PREVIOUSLY PROPOSED GENERAL STANDARDS IN SEVERAL
RESPECTS:
THE AMOUNT OF INSURANCE COVERAGE REQUIRED FOR SUDDEN INCIDENTS IS $1
MILLION PER INCIDENT INSTEAD OF THE $5 MILLION PER INCIDENT SPECIFIED IN
THE PROPOSED GENERAL STANDARD. MANY COMMENTERS ON THE PROPOSED GENERAL
STANDARD ARGUED THAT $5 MILLION WAS TOO HIGH, AND THAT THERE HAVE BEEN
NO REPRESENTATIVE SETTLEMENTS IN THIS AMOUNT. IN RESPONSE TO THESE
COMMENTS, EPA HAS RECONSIDERED THE REQUIRED LEVEL OF COVERAGE. AN
EXTENSIVE ANALYSIS OF THE AGENCY'S DAMAGE REPORT FILES IDENTIFIED ONLY
ONE INCIDENT WHERE DAMAGE CAUSED BY A SUDDEN OCCURRENCE WAS ESTIMATED.
THE DAMAGES IN THIS INCIDENT WERE $216,500 (1979 DOLLARS). INSURANCE
INDUSTRY REPRESENTATIVES INFORMED EPA THAT SMALL FIRMS MIGHT TYPICALLY
MAINTAIN COVERAGE FOR SUDDEN EVENTS IN AN AMOUNT RANGING FROM $300,000
TO $1 MILLION. FINALLY, EPA CONTACTED FOUR STATES (WASHINGTON, OREGON,
OKLAHOMA, AND KANSAS) KNOWN TO REQUIRE INSURANCE FOR HAZARDOUS WASTE
MANAGEMENT FACILITIES, AND FOUND THAT THE AMOUNT OF INSURANCE REQUIRED
BY THESE STATES RANGES FROM $300,000 TO $1.2 MILLION. ON THE BASIS OF
THESE FINDINGS, EPA IS PROPOSING TO REQUIRE $1 MILLION OF LIABILITY
INSURANCE PER INCIDENT.
MANY COMMENTERS ON THE PROPOSED GENERAL REGULATIONS ARGUED THAT EPA
SHOULD NOT SPECIFY ANY ONE AMOUNT OF REQUIRED INSURANCE COVERAGE, THAT
THE AMOUNT SHOULD BE DECIDED ON A CASE-BY-CASE BASIS AFTER A REVIEW OF
THE DEGREE OF RISK POSED BY THE OPERATIONS OF A HAZARDOUS WASTE
MANAGEMENT FACILITY. EPA AGREES THAT THE DEGREE OF RISK IS OF SIGNAL
IMPORTANCE IN SETTING AN APPROPRIATE LEVEL OF INSURANCE COVERAGE. EPA
BELIEVES THAT $1 MILLION IS A REASONABLE MINIMUM LEVEL OF COVERAGE FOR
SUDDEN AND ACCIDENTAL OCCURENCES FOR ALL FIRMS MANAGING HAZARDOUS
WASTES, AND THAT MANY FIRMW WILL CHOOSE TO OBTAIN COVERAGE IN GREATER
AMOUNTS BASED ON THE RISKS INHERENT IN THEIR OPERATIONS. EPA ALSO
BELIEVES THAT THE PREMIUMS PAID BY FACILITY OWNERS AND OPERATORS FOR A
GIVEN LEVEL OF COVERAGE WILL REFLECT THE DEGREE OF RISK POSED BY THE
OPERATIONS OF THE FACILITY.
UNDER TODAY'S PROPOSAL, LIABILITY INSURANCE IS TO BE MAINTAINED ON A
PER FIRM BASIS RATHER THAN A PER SITE BASIS, ACCOMPANIED BY AN ANNUAL
AGGREGATE LIABILITY LIMIT. MANY COMMENTERS ON THE PROPOSED GENERAL
STANDARDS REQUESTED CLARIFICATION ON THIS POINT. LIABILITY INSURANCE IS
REQUIRED ON A PER FIRM BASIS RATHER THAN A PER SITE BASIS BECAUSE
INSURANCE COMPANIES GENERALLY PROVIDE COVERAGE TO ALL FACILITIES OWNED
OR OPERATED BY A FIRM UNDER A SINGLE POLICY. THE INSURANCE INDUSTRY
PROVIDES COVERAGE IN THIS MANNER BECAUSE THROUGH THE USE OF AN ANNUAL
AGGREGATE THEY ARE ABLE TO TAKE INTO ACCOUNT THE RISK OF MULTIPLE
ACCIDENTS OCCURRING AT A FIRM WHICH OWNS ONE OR MORE FACILITIES. HAVING
REVIEWED PRIOR DAMAGE INCIDENT HISTORIES, THE AGENCY BELIEVES THAT AN
ANNUAL AGGREGATE TWICE THAT OF THE LIABILITY LIMIT PER OCCURRENCE WILL
PROVIDE ADEQUATE COVERAGE FOR SUDDEN ACCIDENTS.
THE AMOUNT OF LIABILITY INSURANCE CARRIED MUST EXCLUDE LEGAL DEFENSE
COSTS. LEGAL DEFENSE COSTS ARE EXCLUDED FROM THE LIABILITY IMITS
BECAUSE THE COSTS OF LEGAL DEFENSE COULD BE CONSIDERABLE AND, IF
INCLUDED IN THE LIMITS, COULD CONSUME THE MAJOR PORTION OF INSURANCE
COVERAGE AND LEAVE LITTLE COVERAGE FOR ACTUAL DAMAGES. THE EXCLUDSION
OF LEGAL DEFENSE COSTS IS ALSO CONSISTENT WITH STANDARD COMPREHENSIVE
GENERAL LIABILITY POLICIES.
AN ADDED REQUIREMENT IS THAT THE DEDUCTIBLE IN THE INSURANCE PLICY
MUST NOT EXCEED 5 PERCENT OF THE PER INCIDENT LIMIT OF LIABILITY OF THE
POLICY. A MAXIMUM LIMIT HAS BEEN PLACED ON THE DEDUCTIBLE IN ORDER TO
PREVENT FIRMS FROM CARRYING A POLICY WITH A DEDUCTIBLE SO HIGH AS TO
RENDER ANY INSURANCE DOVERAGE INEFFECTIVE, DUE TO THE UNDERLYING
INABILITY OF THE FIRM TO MEET ITS OBLIGATIONS UNDER THE DEDUCTIBLE.
800519
FEDERAL REGISTER PART 8, VOLUME 45 NUMBER 98, PROPOSED RULE'S
EPA HAZARDOUS WASTE MANAGEMENT SYSTEM PROPOSED TO MODIFY 40 CFR PART
265, 264 SUBPART H, FINANCIAL REQUIREMENTS FOR OWNERS AND OPERATORS OF
HAZARDOUS WASTE MANAGEMENT FACILITIES, FRL 1459-7
PART 006 OF 20
COSTLE D M ADMINISTRATOR
EPA
113476
REGULATIONS
FINALLY, SELF-INSURANCE IS NOT PERMITTED AS AN ALTERNATIVE TO
LIABILITY INSURANCE DURING INTERIM STATUS. SELF-INSURANCE AS PROPOSED
IN THE DECEMBER 1978 GENERAL STANDARDS, WAS DEFINED AS THE ABSENCE OF
INSURANCE ANA THE SUFFICIENCY OF EQUITY TO COVER POTENTIAL CLAIMS. THE
AGENCY BELIEVES THAT MOST IF NOT ALL FIRMS CURRENTLY CARRY OR CAN OBTAIN
COMPREHENSIVE GENERAL LIABILITY POLICIES AND HENCE SEES NO NEED TO ALLOW
SELF-INSURANCE FOR THE INTERIM STATUS PERIOD.
IN THE ORIGINAL PROPOSAL THE AGENCY DID NOT ADDRESS THE PROBLEM OF
DIFFERENCES BETWEEN STATE AND FEDERAL FINANCIAL REQUIREMENTS WHICH
POTENTIALLY MIGHT CAUSE PROBLEMS TO OWNERS OR OPERATORS. NO SUCH
PROBLEM WOULD DEVELOP IN STATES THAT RECEIVE AUTHORIZATION TO OPERATE A
HAZARDOUS WASTE REGULATORY PROGRAM IN LIEU OF THE FEDERAL PROGRAM, SINCE
ONLY THE STATE'S REQUIREMENTS WOULD APPLY. SOME STATES, HOWEVER, MAY
NOT SEEK OR OBTAIN FEDERAL AUTHORIZATION, AND, FOR OTHERS, AUTHORIZATION
MAY BE DELAYED. IN SUCH STATES THE OWNERS AND OPERATORS WOULD BE
SUBJECT TO FEDERAL HAZARDOUS WASTE REGULATIONS AND ALSO TO ANY STATE
HAZARDOUS WASTE REGULATIONS THAT ARE IN EFFECT. TO AVOID CAUSING
UNNECESSARY BURDENS ON OWNERS AND OPERATORS, THE AGENCY HAS INCLUDED
PROVISIONS IN THE REVISED PROPOSAL THAT WOULD ALLOW OWNERS OR OPERATORS
TO USE STATE-AUTHORIZED MECHANISMS TO MEET THE FEDERAL FINANCIAL
REQUIREMENTS IF SUCH MECHANISMS PROVIDE ASSURANCES THAT ARE
SUBSTANTIALLY EQUIVALENT TO THAT OF MECHANISMS SPECIFIED IN THE FEDERAL
REQUIREMENTS.
ALSO, TO THE EXTENT THAT A STATE ASSUMES LEGAL OR FINANCIAL
RESPONSIBILITY FOR CLOSURE, POST-CLOSURE CARE, OR LIABILITY COVERAGE FOR
A FACILITY, THE OWNER AND OPERATOR WOULD BE EXEMPT FROM THE RESPECTIVE
FEDERAL FINANCIAL REQUIREMENTS.
IN RESPONSE TO MANY COMMENTS ON THE ORIGINAL PROPOSED REGULATION ON
FINANCIAL ASSURANCE FOR CLOSURE AND POST-CLOSURE CARE, THE AGENCY IS
PROPOSING A GREATLY EXPANDED REGULATION. THE MAIN OBJECTIVE HAS BEEN TO
ALLOW MEANS IN ADDITION TO TRUST FUNDS WHICH WOULD BE EFFECTIVE IN
ASSURING AVAILABILITY OF NEEDED FUNDS. EPA HAS LIMITED EXPERIENCE
REGARDING FINANCIAL MECHANISMS, HOWEVER. THE AGENCY WISHES TO RECEIVE,
AND EXPECTS TO BENEFIT GREATLY FROM, PUBLIC REVIEW OF THIS ENTIRE
REVISED PROPOSAL. FURTHERMORE, THE AGENCY REQUESTS COMMENTS ON THE
FOLLOWING SPECIFIC MATTERS:
THE REVISED PROPOSAL ALLOWS THE CLOSURE TRUST FUND TO BE BUILT UP IN
ANNUAL PAYMENTS OVER THE LIFE OF THE FACILITY, OR 20 YEARS, WHICHEVER
PERIOD IS SHORTER. DOES THE BENEFIT OF LOWERING THE COST OF COMPLIANCE
WITH THE FINANCIAL REQUIREMENT OUTWEIGH ANY REDUCTION IN FINANCIAL
ASSURANCE CAUSED BY THE LENGTHY PAY-IN PERIOD?
WHAT KINDS OF OWNERS OR OPERATORS OF HAZARDOUS WASTE FACILITIES ARE
LIKELY TO BE ABLE TO OBTAIN LETTERS OF CREDIT AND SURETY BONDS? CAN THE
REQUIREMENTS FOR THESE INSTRUMENTS BE ALTERED IN A WAY THAT WILL
INCREASE THEIR AVAILABILITY WITHOUT REDUCING THEIR EFFECTIVENESS?
WHAT HAS BEEN THE EXPERIENCE OF OTHER GOVERNMENTAL ENTITIES WITH
COLLECTING ON SURETY BONDS AND LETTERS OF CREDIT IN THE EVENT OF A
DEFAULT? HAS EXPERIENCE LED ANY GOVERNMENTAL BODY TO PREFER ONE TYPE OF
FINANCIAL INSTRUMENT OVER ANOTHER IN TERMS OF RELIABILITY AND EASE OF
ADMINISTRATION? WHAT KINDS OF ARRANGEMENTS DO BANKS AND OTHER FINANCIAL
INSTITUTIONS USUALLY MAKE TO HOLD FUNDS PENDING THE OUTCOME OF LEGAL
DETERMINATIONS OF DEFAULT?
ARE THE PROPOSED FINANCIAL TEST REVENUE TEST, AND GUARANTY 1
EFFECTIVE MEANS OF FINANCIAL ASSURANCE? ARE THE CRITERIA WHICH PROMISE
GREATER ACCURACY OR RELIABILITY? IS THERE EMPIRICAL EVIDENCE AVAILABLE
WHICH WOULD JUSTIFY MAKING THE PROPOSED FINANCIAL TESTS MORE OR LESS
STRINGENT? SHOULD PRIVATE BOND-RATING SERVICES BE CONSIDERED AS AN
ALTERNATIVE TO THE REVENUE TEST FOR MUNICIPALITIES OR ADDED AS AN
ELEMENT OF THE TEST?
THE AGENCY HAS CONSIDERED ESCROW ACCOUNTS AS MECHANISMS FOR FINANCIAL
ASSURANCE AND HAS TENTATIVELY DECIDED THAT THEY ARE LIKELY TO PRESENT
UNDUE ADMINISTRATIVE BURDENS TO THE AGENCY WITHOUT OFFERING SIGNIFICANT
ADVANTAGES OVER THE OTHER INSTRUMENTS ALLOWED IN THE REGULATIONS.
COMMENTS ARE NONETHELESS INVITED ON THE IDEA OF ADDING ESCROW ACCOUNTS
TO THE LIST OF ALLOWED INSTRUMENTS.
THE REVISED PROPOSAL ALLOWS FOR USE OF A SINGLE FINANCIAL MECHANISM
TO PROVIDE FINANCIAL ASSURANCE FOR CLOSURE AND/OR POST-CLOSURE CARE OF
MULTIPLE FACILITIES. HOW USEFUL IS THIS PROVISION TO THE REGULATED
COMMUNITY? WILL IT POSE ADMINISTRATIVE PROBLEMS TO THE REGIONAL OFFICES
IN CASES WHERE FACILITIES IN MORE THAN ONE REGION ARE COVERED BY A
SINGLE FINANCIAL INSTRUMENT?
SUGGESTIONS AND INFORMATION ON OTHER POSSIBLE MECHANISMS, OR ON
DIFFERENT VERSIONS OF THE INSTRUMENTS ALREADY ALLOWED, WILL BE WELCOMED.
THE UTILITY OF SUCH SUGGESTIONS WILL BE MAXIMIZED BY PROVIDING CONCRETE
EXAMPLES OF THE FORM AND OPERATION OF THE INSTRUMENTS AS WELL AS AN
ARGUMENT AS TO HOW THEY WILL SUCCEED IN MEETING THE PROBLEMS OF
PROVIDING FINANCIAL ASSURANCE FOR CLOSURE AND/OR POST-CLOSURE CARE AT A
HAZARDOUS WASTE FACILITY.
EPA HAS BEEN CONSIDERING PROPOSING LEGISLATION FOR A NATIONAL FUND
THAT WOULD PROVIDE FINANCIAL ASSURANCE FOR POST-CLOSURE CARE. UNDER
SUCH AN APPROACH, OWNERS OR OPERATORS OF HAZARDOUS WASTE DISPOSAL
FACILITIES WOULD PAY INTO A NATIONAL FUND WHICH WOULD THEN BE USED TO
PAY FOR POST-CLOSURE CARE AT BANKRUPT FACILITIES. COMMENTS ARE INVITED
ON WHETHER THIS APPROACH MIGHT BE LESS COSTLY THAN THE PROPOSED
REQUIREMENTS FOR FINANCIAL ASSURANCE FOR POST-CLOSURE CARE.
FORMS FOR THE TRUST INSTRUMENTS, SURETY BONDS, LETTERS OF CREDIT, AND
GUARANTEES ALLOWED IN THIS REVISED PROPOSAL ARE INCLUDED IN THESE
REGULATIONS IN APPENDICES II-VIII. THE AGENCY WOULD PREFER TO REQUIRE
THE USE OF SUCH FORMS IN ORDER TO SIMPLIFY REVIEW OF THE INSTRUMENTS AND
ADMINISTRATION OF THE REGULATIONS. ARE THERE ERRORS OF COMMISSION OR
OMISSION IN THE LANGUAGE OF THE SPECIFIC FORMS WHICH MAY IMPEDE OR
PREVENT THEM FROM ACCOMPLISHING THE GOALS INTENDED? WOULD CHANGES IN
THE LANGUAGE OR REQUIREMENTS OF THE SPECIFIC FORMS INCREASE THEIR
AVAILABILITY TO THE REGULATED COMMUNITY WITHOUT REDUCING THEIR
RELIABILITY? HOW CAN THE COSTS OF THE INSTRUMENTS BE MINIMIZED FURTHER?
EPA ALSO INVITES COMMENTS ON SEVERAL ISSUES PERTAINING TO THE INTERIM
STATUS LIABILITY REQUIREMENT PROPOSED TODAY, AND REOPENS THE COMMENT
PERIOD ON THE GENERAL STANDARD FOR LIABILITY COVERAGE PROPOSED DECEMBER
18, 1978 (43 FR 59007).
EPA INVITES COMMENT ON THE FOLLOWING SPECIFIC ISSUES, AS WELL AS
ON ANY OTHER ISSUES RAISED BY THE PROPOSED LIABILITY REQUIREMENTS:
SHOULD THE AGENCY REQUIRE INSURANCE COVERAGE FOR NONSUDDEN AND
ACCIDENTAL OCCURRENCES DURING THE INTERIM STATUS PERIOD?
WILL THE INSURANCE INDUSTRY PROVIDE SUCH COVERAGE?
WILL SUCH COVERAGE BE AVAILABLE ON A CONTINUING BASIS, OR MAY THE
INSURANCE INDUSTRY WITHDRAW SUCH COVERAGE IN THE EVENT OF LARGE DAMAGE
SUITS?
800519
FEDERAL REGISTER PART 8, VOLUME 45 NUMBER 98, PROPOSED RULE'S
EPA HAZARDOUS WASTE MANAGEMENT SYSTEM PROPOSED TO MODIFY 40 CFR PART
265, 264 SUBPART H, FINANCIAL REQUIREMENTS FOR OWNERS AND OPERATORS OF
HAZARDOUS WASTE MANAGEMENT FACILITIES, FRL 1459-7
PART 007 OF 20
COSTLE D M ADMINISTRATOR
EPA
113477
REGULATIONS
IS IT DESIRABLE TO ALLOW THE USE OF FINANCIAL RESPONSIBILITY
MECHANISMS SUCH AS INDEMNITY FUNDS AS ALTERNATIVES TO LIABILITY
INSURANCE FOR EITHER SUDDEN OR NONSUDDEN OCCURRENCES? HOW WOULD SUCH
ALTERNATIVES WORK?
IS THE AMOUNT OF COVERAGE SPECIFIED IN THE REGULATIONS APPROPRIATE?
CAN WE TAILOR THE AMOUNT OF REQUIRED INSURANCE TO REFLECT BETTER THE
DEGREES OF RISK POSED BY THE OPERATIONS OF PARTICULAR SITES? HOW CAN
THIS BE DONE?
WHAT WILL THE LIKELY ANNUAL COST OF INSURANCE BE FOR NONSUDDEN
INCIDENTS?
WILL ALL FIRMS BE ABLE TO AFFORD INSURANCE FOR NONSUDDEN INCIDENTS?
CAN A USEFUL SELF-INSURANCE ALTERNATIVE BE SPECIFIED WHICH WILL
ENSURE FINANCIAL RESPONSIBILITY? WHAT CRITERIA SHOULD BE USED IN
QUALIFYING SELF-INSURERS? WHAT SHOULD BE THE ALLOWABLE LEVEL(S) OF
SELF-INSURANCE?
EPA HAS OBTAINED INFORMATION ON THE ABOVE ISSUES RELATING TO
LIABILITY REQUIREMENTS SINCE THE ORIGINAL PROPOSAL AND HAS INCLUDED THE
INFORMATION AS AN APPENDIX TO THE BACKGROUND DOCUMENT FOR THE FINANCIAL
REQUIREMENTS. THE AGENCY REQUESTS COMMENTS ON THIS INFORMATION AS WELL
AS ON THE REST OF THE BACKGROUND DOCUMENT.
COPIES OF THE BACKGROUND DOCUMENT PREPARED IN SUPPORT OF THIS REVISED
PROPOSED RULE ARE AVAILABLE FOR REVIEW IN ALL EPA REGIONAL OFFICE
LIBRARIES AND IN THE EPA HEADQUARTERS LIBRARY (PUBLIC INFORMATION
REFERENCE UNIT) ROOM 2404, WATERSIDE MALL, 401 M STREET, SW, WASHINGTON,
D.C.
IN ACCORDANCE WITH EXECUTIVE ORDER 11821, AS AMENDED BY EXECUTIVE
ORDER 11949, AND OMB CIRCULAR A-107, EPA POLICY AS STIPULATED IN 39 FR
37419, OCTOBER 21, 1974, AND EXECUTIVE ORDER 12044, RESPECTIVELY,
ANALYSES OF THE ECONOMIC, ENVIRONMENTAL, AND REGULATORY IMPACTS ARE
BEING PERFORMED FOR THE ENTIRETY OF SUBTITLE C, HAZARDOUS WASTE
MANAGEMENT. COPIES OF THE DRAFT DOCUMENTS COVERING THE PROPOSED
REQUIREMENTS FOR FINANCIAL ASSURANCE OF CLOSURE AND POST-CLOSURE CARE
ARE AVAILABLE FOR REVIEW IN THE EPA LIBRARIES NOTED ABOVE. THE IMPACTS
OF THE LIABILITY REQUIREMENT IN THIS REPROPOSAL ARE NOT COVERED IN THE
PRESENT DRAFTS BUT WILL BE COVERED IN SUBSEQUENT DRAFTS.
DATED: MAY 2, 1980.
DOUGLAS M. COSTLE, ADMINISTRATOR.
IT IS PROPOSED TO AMEND 40 CFR PART 265 BY REVISING SECTION
265.140(A) AND (B), AND ADDING SECTIONS 205.141, 265.143, 265.145,
265.146, 265.147, AND APPENDICES I-VIII. IT IS ALSO PROPOSED THAT THE
SAME PROVISIONS WITH CHANGES IN SECTION NUMBERS AND OTHER MINOR
MODIFICATIONS, WILL BE INCLUDED IN PART 264.
(A) THE REQUIREMENTS OF SECTIONS 265.142, 265.143, 265.146, 265.147,
AND 265.149 APPLY TO OWNERS AND OPERATORS OF ALL HAZARDOUS WASTE
FACILITIES, EXCEPT AS PROVIDED OTHERWISE IN THIS SECTION OR IN SECTION
265.1.
(B) THE REQUIREMENTS OF SECTIONS 265.144 AND 265.145 APPLY ONLY TO
OWNERS AND OPERATORS OF DISPOSAL FACILITIES.
WHEN USED IN PART 265, THE FOLLOWING TERMS HAVE THE MEANINGS GIVEN
BELOW:
(A) "ASSETS: MEANS DEBIT BALANCES CARRIED FORWARD UPON A CLOSING OF
BOOKS OF ACCOUNT REPRESENTING PROPERTY VALUES OF RIGHTS ACQUIRED THAT
ARE RECOGNIZED AND MEASURED IN CONFORMITY WITH GENERALLY ACCEPTED
ACCOUNTING PRINCIPLES.
(B) "CURRENT ASSETS" MEANS CASH AND OTHER ASSETS THAT ARE REASONABLY
EXPECTED TO BE REALIZED IN CASH OR SOLD OR CONSUMED DURING THE NORMAL
OPERATING CYCLE OF A BUSINESS OR WITHIN ONE YEAR, IF THE OPERATING CYCLE
IS SHORTER THAN ONE YEAR.
(C) "CURRENT LIABILITIES" MEANS LIABILITIES EXPECTED TO BE SATISFIED
BY EITHER THE USE OF ASSETS CLASSIFIED AS CURRENT IN THE SAME BALANCE
SHEET OR THE CREATION OF OTHER CURRENT LIABILITIES; OR THOSE EXPECTED
TO BE SATISFIED WITHIN A RELATIVELY SHORT PERIOD OF TIME, USUALLY ONE
YEAR.
(D) "LIABILITIES" MEANS OBLIGATIONS CARRIED FORWARD UPON A CLOSING OF
BOOKS OF ACCOUNT THAT ARE RECOGNIZED AND MEASURED IN CONFORMITY WITH
GENERALLY ACCEPTED ACCOUNTING PRINCIPLES.
(E) "MARKETABLE SECURITIES" MEANS SECURITIES THAT ARE TRADED ON
RECOGNIZED ESTABLISHED SECURITIES MARKETS WHERE THERE ARE INDEPENDENT
BONA FIDE OFFERS TO BUY AND SELL AND WHERE PAYMENT WILL BE RECEIVED IN
SETTLEMENT OF A SALE WITHIN A RELATIVELY SHORT TIME CONFORMING TO TRADE
CUSTOM.
(F) "NET WORKING CAPITAL" MEANS THE EXCESS OF CURRENT ASSETS OVER
CURRENT LIABILITIES.
(G) "NET WORTH" MEANS THE EXCESS OF TOTAL ASSETS OVER TOTAL
LIABILITIES AND IS EQUIVALENT TO OWNER'S EQUITY.
(Y) "STANDBY LETTER OF CREDIT: MEANS AN IRREVOCABLE ENGAGEMENT BY AN
ISSUING BANK, AT THE REQUEST OF AN OWNER OR OPERATOR, THAT IT WILL HONOR
DEMANDS FOR PAYMENT MADE BY THE U.S. ENVIRONMENTAL PROTECTION AGENCY FOR
THE PERIOD OF THE LETTER OF CREDIT AND UNDER TERMS SPECIFIED FOR LETTERS
OF CREDIT IN THESE REGULATIONS.
(I) "SURETY BOND" MEANS A CONTRACT BY WHICH A SURETY COMPANY ENGAGES
TO BE ANSWERABLE FOR THE DEFAULT OR DEBTS BY AN OWNER OR OPERATOR ON
RESPONSIBILITIES RELATING TO CLOSURE OR POST-CLOSURE CARE, AND AGREES TO
SATISFY THESE RESPONSIBILITIES IF THE OWNER OR OPERATOR DOES NOT, IN
ACCORDANCE WITH THE TERMS SPECIFIED FOR SURETY BONDS IN THESE
REGULATIONS.
(J) "TOTAL-LIABILITIES-TO-NET-WORTH RATIO" MEANS THE VALUE OF TOTAL
LIABILITIES, WHICH INCLUDES THE SUM OF SHORT-TERM AND LONG-TERM
OBLIGATIONS, DIVIDED BY THE VALUE OF NET WORTH.
(K) "TRUST FUND" MEANS A FUND ESTABLISHED BY AN OWNER OR OPERATOR AND
HELD BY A FINANCIAL INSTITUTION AS THE TRUSTEE WITH A FIDUCIARY
RESPONSIBILITY TO CARRY OUT THE TERMS OF THE TRUST AS SPECIFIED IN THESE
REGULATIONS FOR THE BENEFIT OF THE U.S. ENVIRONMENTAL PROTECTION AGENCY.
BY THE EFFECTIVE DATE OF THESE REGULATIONS, AN OWNER OR OPERATOR OF
EACH FACILITY MUST ESTABLISH FINANCIAL ASSURANCE FOR CLOSURE OF THE
FACILITY. HE MUST CHOOSE FROM AMONG THE FOLLOWING OPTIONS:
(A) CLOSURE TRUST FUND.
(1) THE OWNER OR OPERATOR MAY ESTABLISH A CLOSURE TRUST FUND. THE
TRUSTEE MUST BE A BANK OR OTHER FINANCIAL INSTITUTION. THE BENEFICIARY
OF THE TRUST FUND MUST BE THE U.S. ENVIRONMENTAL PROTECTION AGENCY.
(2) THE TRUST AGREEMENT MUST BE EXECUTED ON EPA FORM 8700-15 (SEE
APPENDIX II). THE OWNER OR OPERATOR MUST SEND THE PROPERLY EXECUTED
TRUST AGREEMENT TO THE REGIONAL ADMINISTRATOR BY CERTIFIED MAIL WITHIN
10 DAYS AFTER THE EFFECTIVE DATE OF THE AGREEMENT.
(3) REPLACEMENT OF A TRUST FUND WITH ANOTHER FORM OR FORMS OF
FINANCIAL ASSURANCE ALLOWED IN THIS SECTION MUST BE PRECEDED BY THE
WRITTEN CONSENT OF THE REGIONAL ADMINISTRATOR. THE OWNER OR OPERATOR
MUST REPORT ANY CHANGE OF TRUSTEE TO THE REGIONAL ADMINISTRATOR WITH 10
DAYS AFTER SUCH A CHANGE BECOMES EFFECTIVE.
(4) PAYMENTS TO THE TRUST FUND MUST BE IN CASH OR MARKETABLE
SECURITIES. THE VALUE OF EACH SECURITY MUST BE DETERMINED IN ACCORDANCE
WITH THE INTERNAL REVENUE SERVICE METHOD FOR VALUING SECURITIES FOR
ESTATE TAX PURPOSES (26 CFR 20.2031-2). IN ALL VALUATIONS OF THE TRUST
FUND FOR PURPOSES OF THESE REGULATIONS, SECURITIES MUST BE VALUED BY
THIS IRS METHOD.
800519
FEDERAL REGISTER PART 8, VOLUME 45 NUMBER 98, PROPOSED RULE'S
EPA HAZARDOUS WASTE MANAGEMENT SYSTEM PROPOSED TO MODIFY 40 CFR PART
265, 264 SUBPART H, FINANCIAL REQUIREMENTS FOR OWNERS AND OPERATORS OF
HAZARDOUS WASTE MANAGEMENT FACILITIES, FRL 1459-7
PART 008 OF 20
COSTLE D M ADMINISTRATOR
EPA
113478
REGULATIONS
(5) PAYMENTS TO THE CLOSURE TRUST FUND MUST BE MADE ANNUALLY OVER THE
OPERATING LIFE OF THE FACILITY AS ESTIMATED IN THE CLOSURE PLAN (SECTION
265.112(A)) OR 20 YEARS, WHICHEVER PERIOD IS SHORTER; THIS PERIOD IS
HEREAFTER REFERRED TO AS THE "PAY-IN" PERIOD. THE FIRST PAYMENT MUST BE
EQUAL TO THE ADJUSTED CLOSURE COST ESTIMATE (SEE SECTION 265.142)
DIVIDED BY THE PAY-IN" PERIOD. THE FIRST PAYMENT MUST BE MADE BY THE
EFFECTIVE DATE OF THESE REGULATIONS. SUBSEQUENT PAYMENTS MUST BE MADE
NO LATER THAN 30 DAYS AFTER EACH ANNIVERSARY DATE OF THE FIRST PAYMENT.
THE TRUST AGREEMENT MUST REQUIRE THE TRUSTEE TO NOTIFY THE REGIONAL
ADMINISTRATOR BY CERTIFIED MAIL WITHIN 5 DAYS AFTER THE END OF THE
30-DAY PERIOD IF HE DOES NOT RECEIVE PAYMENT WITHIN SUCH PERIOD. UPON
RECEIVING SUCH NOTIFICATION, THE REGIONAL ADMINISTRATOR MAY ORDER THE
FACILITY TO BEGIN CLOSURE UNLESS THE OWNER OR OPERATOR HAS ESTABLISHED
OTHER FINANCIAL ASSURANCE AS ALLOWED IN THIS SECTIOW.
(6) THE OWNER OR OPERATOR MUST ADJUST THE AMOUNT OF EACH ANNUAL
PAYMENT AFTER THE FIRST ONE BY MULTIPLYING THE AMOUNT OF THE PREVIOUS
YEAR'S PAYMENT BY THE INFLACTION FACTOR CALCULATED IN ACCORDANCE WITH
SECTION 265.142(C).
(7) IF A NEW CLOSURE COST ESTIMATE IS PREPARED IN ACCORDANCE WITH
SECTION 265.142(B), THE NEXT ANNUAL PAYMENT MUST BE CALCULATED AS
FOLLOWS:
STEP 1 -- DIVIDE THE ADJUSTED CLOSURE COST ESTIMATE BY THE NUMBER OF
YEARS IN THE PAY-IN PERIOD AS OF THE EFFECTIVE DATE OF THESE
REGULATIONS.
STEP 2 -- MULTIPLY THE RESULT BY THE NUMBER OF PAYMENTS MADE TO THE
FUND.
STEP 3 -- FROM THE RESULT OF STEP 2 SUBTRACT THE CURRENT VALUE OF THE
FUND. THE RESULT IS THE AMOUNT WHICH NEEDS TO BE DISTRIBUTED OVER THE
REMAINING PAY-IN PERIOD.
STEP 5 -- ADD THE RESULT OF STEP 4 TO THE RESULT OF STEP 1 TO OBTAIN
THE NEW PAYMENT. (FOR AN EXAMPLE OF THIS CALCULATION, SEE APPENDIX I.)
(8) THE OWNER OR OPERATOR MUST DETERMINE THE VALUE OF THE TRUST FUND
EACH YEAR WITHIN 30 DAYS PRIOR TO THE DATE EACH ANNUAL PAYMENT IS DUE TO
BE MADE. IF THE TOTAL VALUE OF THE FUND HAS DECREASED SINCE THE
PREVIOUS YEAR'S VALUATION, THE NEXT PAYMENT MUST BE CALCULATED USING THE
STEPS IN PARAGRAPH (A)(7) OF THIS SECTION. THE OWNER OR OPERATOR MAY
ALSO USE THE CALCULATION IN PARAGRAPH (A)(7) TO DETERMINE HIS NEXT
PAYMENT IF THE VALUE OF THE FUND HAS INCREASED. IF THE VALUE OF THE
FUND EXCEEDS THE TOTAL AMOUNT OF THE ADJUSTED CLOSURE COST ESTIMATE, THE
OWNER OR OPERATOR MAY SUBMIT A WRITTEN REQUEST TO THE REGIONAL
ADMINISTRATOR FOR RELEASE OF THE AMOUNT IN EXCESS OF THE ADJUSTED
CLOSURE COST ESTIMATE. THIS REQUEST MUST BE ACCOMPANIED BY A WRITTEN
STATEMENT FROM THE TRUSTEE CONFIRMING THE VALUE OF THE FUND.
(9) AN OWNER OR OPERATOR MAY ACCELERATE PAYMENTS INTO THE TRUST FUND
OR HE MAY DEPOSIT THE FULL AMOUNT OF THE CLOSURE COST ESTIMATE AT THE
TIME THE FUND IS ESTABLISHED, BUT THE TRUST FUND MUST BE VALUED ANNUALLY
AND ITS VALUE MUST BE MAINTAINED AT NO LESS THAN THE VALUE THAT THE FUND
WOULD HAVE HAD IF ANNUAL PAYMENTS HAD BEEN MADE AS SPECIFIED IN
PARAGRAPHS (A)(5)-(8) OF THIS SECTION.
(10) IF AN OWNER OR OPERATOR ESTABLISHES A CLOSURE TRUST FUND AFTER
THE EFFECTIVE DATE OF THESE REGULATIONS, HAVING INITIALLY USED ONE OF
THE OTHER MECHANISMS SPECIFIED IN THIS SECTION, HIS FIRST PAYMENT MUST
BE IN THE AMOUNT THAT THE TRUST FUND WOULD HAVE CONTAINED IF IT HAD BEEN
ESTABLISHED ON THE EFFECTIVE DATE OF THESE REGULATIONS IN ACCORDANCE
WITH THE REQUIREMENTS OF THIS SECTION.
(11) IF THE OPERATING LIFE OF A FACILITY EXTENDS BEYOND THE MAXIMUM
20-YEAR PAY-IN PERIOD, THE OWNER OR OPERATOR MUST DETERMINE THE VALUE OF
THE TRUST FUND EVERY YEAR AFTER THE 20TH YEAR UNTIL CLOSURE BEGINS.
WHENEVER THE CLOSURE COST ESTIMATE CHANGES DURING THIS PERIOD IN
ACCORDANCE WITH SECTION 265.142(B) OR (C), THE OWNER OR OPERATOR MUST
COMPARE THE NEW ESTIMATE WITH THE LATEST ANNUAL VALUE OF THE FUND. IF
THE VALUE OF THE FUND IS LESS THAN THE AMOUNT OF THE ADJUSTED CLOSURE
COST ESTIMATE, THE OWNER OR OPERATOR MUST DEPOSIT CASH OR MARKETABLE
SECURITIES INTO THE FUND SO THAT ITS VALUE EQUALS THE AMOUNT OF THE
ESTIMATE. SUCH PAYMENT MUST BE MADE WITHIN 60 DAYS OF THE CHANGE IN THE
CLOSURE COST ESTIMATE. IF THE VALUE OF THE FUND IS GREATER THAN THE
TOTAL AMOUNT OF THE ADJUSTED CLOSURE COST ESTIMATE, THE OWNER OR
OPERATOR MAY SUBMIT A WRITTEN REQUEST TO THE REGIONAL ADMINISTRATOR FOR
RELEASE OF FUNDS IN EXCESS OF THE ESTIMATE. THIS REQUEST MUST BE
ACCOMPANIED BY A WRITTEN STATEMENT FROM THE TRUSTEE CONFIRMING THE VALUE
OF THE FUND.
(12) WITHIN 30 DAYS AFTER RECEIVING A REQUEST FROM THE OWNER OR
OPERATOR FOR RELEASE OF EXCESS FUNDS AS SPECIFIED IN PARAGRAPHS (A)(8)
AND (11), THE REGIONAL ADMINISTRATOR MUST DIRECT THE TRUSTEE IN WRITING
TO RELEASE SUCH EXCESS FUNDS TO THE OWNER OR OPERATOR UNLESS THE
REGIONAL ADMINISTRATOR FINDS THAT THE CLOSURE COST ESTIMATE WAS NOT
PREPARED AND ADJUSTED IN ACCORDANCE WITH SECTION 265.142.
(13) AN OWNER OR OPERATOR MAY REQUEST REIMBURSEMENT FOR CLOSURE
EXPENDITURES BY SUBMITTING ITEMIZED BILLS TO THE REGIONAL ADMINISTRATOR.
WITHIN 30 DAYS AFTER RECEIVING BILLS FOR CLOSURE ACTIVITIES, THE
REGIONAL ADMINISTRATOR MUST DIRECT THE TRUSTEE IN WRITING TO PAY THOSE
BILLS WHICH THE REGIONAL ADMINISTRATOR DETERMINES TO BE IN ACCORDANCE
WITH THE CLOSURE PLAN OR ARE THERWISE JUSTIFIED. SUCH PAYMENTS MUST BE
MADE SO LONG AS THE VALUE OF THE FUND AFTER PAYMENT IS AT LEAST 20
PERCENT OF THE VALUE THAT THE FUND HAD BEFORE ANY CLOSURE BILLS WERE
PAID.
(14) IF AN OWNER OR OPERATOR SUBSTITUTES ANOTHER FORM OR FORMS OF
FINANCIAL ASSURANCE SPECIFIED IN THIS SECTION FOR ALL OR PART OF THE
TRUST FUND, HE MAY APPLY TO THE REGIONAL ADMINISTRATOR FOR RELEASE OF
FUNDS FROM THE TRUST FUND. WITHIN 30 DAYS AFTER RECEIVING SUCH REQUEST,
THE REGIONAL ADMINISTRATOR MUST DIRECT THE TRUSTEE IN WRITING TO RELEASE
THE EXCESS FUNDS TO THE OWNER OR OPERATOR.
(15) THE TERMS OF THE TRUST MUST REQUIRE THE TRUSTEE TO MAKE
DISBURSEMENTS AS SPECIFIED IN THIS PARAGRAPH. THE TRUSTEE WILL DISBURSE
MONIES FROM THE TRUST FUND TO PARTIES DESIGNATED BY THE REGIONAL
ADMINISTRATOR UPON WRITTEN NOTIFICATION FROM THE REGIONAL ADMINISTRATOR
THAT:
(I) THE VALUE OF THE TRUST FUND EXCEEDS THE AMOUNT OF THE ADJUSTED
CLOSURE COST ESTIMATE; OR
(II) THE ITEMIZED BILLS ARE IN ACCORDANCE WITH THE APPROVED CLOSURE
PLAN OR ARE OTHERWISE JUSTIFIED, AND THEY MUST BE PAID IF THE VALUE OF
THE TRUST FUND AFTER SUCH PAYMENT IS AT LEAST 20 PERCENT OF THE VALUE
THAT THE FUND HAD BEFORE ANY CLOSURE BILLS WERE PAID; OR
(III) THE OWNER OR OPERATOR HAS ESTABLISHED OTHER FINANCIAL ASSURANCE
FOR CLOSURE AS ALLOWED IN THIS SECTION FOR PART OR ALL OF THE TRUST
FUND; OR
(IV) THERE HAS BEEN A LEGAL DETERMINATION, A COPY OF WHICH IS
ATTACHED TO THIS NOTIFICATION, OF A VIOLATION OF THE CLOSURE
REQUIREMENTS OF THESE REGULATIONS RENDERED IN A PROCEEDING BROUGHT
PURSUANT TO SECTION 3008 OF RCRA.
(16) THE TRUST AGREEMENT MUST REQUIRE THE TRUSTEE TO RELEASE ALL
FUNDS REMAINING IN THE TRUST FUND TO THE OWNER OR OPERATOR UPON RECEIPT
FROM HIM OF THE ORIGINAL OR AN AUTHENTICATED COPY OF THE REGIONAL
ADMINISTRATOR'S LETTER, SPECIFIED IN PARAGRAPH (H) OF THIS SECTION,
NOTIFYING THE OWNER OR OPERATOR THAT HE IS NO LONGER REQUIRED TO COMPLY
WITH THE REQUIREMENTS OF THIS SECTION FOR FINANCIALLY ASSURING CLOSURE
OF THE FACILITY.
(B) SURETY BOND GUARANTEEING PERFORMANCE OF CLOSURE. (1) AN OWNER OR
OPERATOR MAY MEET THE REQUIREMENTS OF THIS SECTION BY OBTAINING A SURETY
BOND GUARANTEEING PERFORMANCE OF CLOSURE.
800519
FEDERAL REGISTER PART 8, VOLUME 45 NUMBER 98, PROPOSED RULE'S
EPA HAZARDOUS WASTE MANAGEMENT SYSTEM PROPOSED TO MODIFY 40 CFR PART
265, 264 SUBPART H, FINANCIAL REQUIREMENTS FOR OWNERS AND OPERATORS OF
HAZARDOUS WASTE MANAGEMENT FACILITIES, FRL 1459-7
PART 009 OF 20
COSTLE D M ADMINISTRATOR
EPA
113479
REGULATIONS
A SURETY COMPANY ISSUING A BOND IN ACCORDANCE WITH THESE REGULATIONS
MUST, AT A MINIMUM, BE AUTHORIZED TO DO BUSINESS IN THE UNITED STATES
AND BE CERTIFIED BY THE U.S. TREASURY DEPARTMENT, IN CIRCULAR 570, TO
WRITE BONDS IN THE PENAL SUM OF THE BOND TO BE ISSUED. THE OBLIGEE OF
THE BOND MUST BE THE U.S. ENVIRONMENTAL PROTECTION AGENCY.
(2) THE BOND MUST BE EXECUTED ON EPA FORM 8700-16 (SEE APPENDIX III).
THE TERMS OF THE BOND MUST PROVIDE THAT THE SURETY WILL SEND THE
PROPERLY EXECUTED BOND TO THE REGIONAL ADMINISTRATOR BY CERTIFIED MAIL
WITHIN 10 DAYS AFTER THE EFFECTIVE DATE OF THE BOND.
(3) THE SURETY BOND MUST GUARANTEE THAT THE OWNER OR OPERATOR WILL
PERFORM FACILITY CLOSURE IN ACCORDANCE WITH THE CLOSURE PLAN. THE
SURETY BOND MUST BE WRITTEN IN AN AMOUNT EQUAL TO OR GREATER THAN THE
ADJUSTED CLOSURE COST ESTIMATE (SEE SECTION 265.142). THE SURETY BOND
MUST BE WRITTEN SO THAT WNENEVER CLOSURE ACTIVITIES BEGIN OR ARE ORDERED
TO BEGIN BY THE REGIONAL ADMINISTRATOR DURING THE TERM OF THE BOND, THE
BOND COVERAGE INCLUDES COMPLETION OF CLOSURE IN ACCORDANCE WITH THE
CLOSURE PLAN.
(4) IF THE CLOSURE COST ESTIMATE INCREASES BEYOND THE AMOUNT OF THE
PENAL SUM OF THE BOND, THE OWNER OR OPERATOR MUST, WITHIN 30 DAYS OF
SUCH INCREASE IN THE ESTIMATE, CAUSE THE PENAL SUM OF THE BOND TO BE
INCREASED OR OBTAIN OTHER FINANCIAL ASSURANCE, AS SPECIFIED IN THIS
SECTION, TO COVER THE INCREASE. IF THE CLOSURE COST ESTIMATE DECREASES,
THE PENAL SUM OF THE BOND MAY BE REDUCED TO THE AMOUNT OF THE ADJUSTED
CLOSURE COST ESTIMATE. AT THE REQUEST OF THE OWNER OR OPERATOR, THE
REGIONAL ADMINISTRATOR MUST SEND WRITTEN NOTICE TO THE SURETY OF ANY
REDUCTION IN THE REQUIRED PENAL SUM WITHIN 30 DAYS AFTER RECEIVING THE
REQUEST.
(5) THE TERMS OF THE SURETY BOND MUST PROVIDE THAT THE SURETY COMPANY
MAY CANCEL THE BOND BY SENDING NOTICE TO THE OWNER OR OPERATOR AND TO
THE REGIONAL ADMINISTRATOR BY CERTIFIED MAIL. CANCELLATION MUST NOT BE
EFFECTIVE FOR AT LEAST 90 DAYS AFTER THE REGIONAL ADMINISTRATOR RECEIVES
THE NOTICE. THE OWNER OR OPERATOR, WITHIN 5 DAYS OF RECEIVING A NOTICE
OF CANCELLATION FROM THE SURETY, MUST NOTIFY THE REGIONAL ADMINISTRATOR
BY CERTIFIED MAIL THAT HE HAS RECEIVED SUCH A NOTICE. THE OWNER OR
OPERATOR MAY CANCEL THE BOND BY PROVIDING 30 DAYS' NOTICE TO THE SURETY
COMPANY IF THE REGIONAL ADMINISTRATOR HAS GIVEN PRIOR WRITTEN CONSENT
BASED ON HIS AVING RECEIVED EVIDENCE OF OTHER FINANCIAL ASSURANCE AS
SPECIFIED IN THIS SECTION.
(6) THIRTY DAYS AFTER RECEIVING A NOTICE OF CANCELLATION FROM THE
SURETY THE REGIONAL ADMINISTRATOR MAY ORDER THE OWNER OR OPERATOR TO
BEGIN CLOSURE UNLESS THE REGIONAL ADMINISTRATOR HAS RECEIVED EVIDENCE OF
OTHER FINANCIAL ASSURANCE AS SPECIFIED IN THIS SECTION.
(7) A SURETY BECOMES LIABLE ON A BOND OBLIGATION ONLY WHEN A
PROCEEDING BROUGHT PURSUANT TO THE PROVISIONS OF SECTION 3008 OF RCRA
HAS DETERMINED THAT THE OWNER OR OPERATOR HAS VIOLATED THE CLOSURE
REQUIREMENTS OF THESE REGULATIONS. THE TERMS OF THE BOND MUST REQUIRE
THAT, FOLLOWING SUCH A DETERMINATION, THE SURETY MUST:
(I) COMPLETE CLOSURE OF THE FACILITY IN ACCORDANCE WITH THE CLOSURE
PLAN; OR
(II) PAY THE AMOUNT OF THE PENAL SUM INTO AN ESCROW ACCOUNT AS
DIRECTED BY THE REGIONAL ADMINISTRATOR.
(8) THE REGIONAL ADMINISTRATOR MUST DIRECT THE DEPOSITARY OF AN
ESCROW ACCOUNT ESTABLISHED UNDER PARAGRAPH (B)(7)(II) OF THIS
SECTION TO DISBURSE FUNDS TO DESIGNATED PARTIES FOR THE PURPOSE OF
COMPLETING CLOSURE.
(C) STANDBY LETTER OF CREDIT ASSURING FUNDS FOR CLOSURE. (1) AN
OWNER OR OPERATOR MAY MEET THE REQUIREMENTS OF THIS SECTION BY OBTAINING
AN IRREVOCABLE STANDBY LETTER OF CREDIT. THE LETTER MUST BE WRITTEN IN
FAVOR OF THE REGIONAL ADMINISTRATOR OF THE U.S. ENVIRONMENTAL PROTECTION
AGENCY AND MUST BE FOR A PERIOD OF AT LEAST ONE YEAR. THE LETTER OF
CREDIT MAY BE ISSUED BY ANY BANK WHICH IS A MEMBER OF THE FEDERAL
RESERVE SYSTEM.
(2) THE LETTER OF CREDIT MUST BE EXECUTED ON EPA FORM 8700-17 (SEE
APPENDIX IV). THE TERMS OF THE LETTER MUST PROVIDE THAT THE ISSUING
BANK WILL SEND THE PROPERLY EXECUTED LETTER OF CREDIT TO THE REGIONAL
ADMINISTRATOR BY CERTIFIED MAIL WITHIN 10 DAYS AFTER THE EFFECTIVE DATE
OF THE LETTER.
(3) THE CREDIT MUST BE ISSUED FOR AT LEAST THE AMOUNT OF THE
ADJUSTED CLOSURE COST ESTIMATE (SEE SECTION 265.142).
(4) IF THE CLOSURE COST ESTIMATE INCREASES BEYOND THE AMOUNT OF THE
CREDIT, THE OWNER OR OPERATOR MUST, WITHIN 30 DAYS OF SUCH INCREASE IN
THE ESTIMATE, CAUSE THE AMOUNT OF THE CREDIT TO BE INCREASED OR OBTAIN
OTHER FINANCIAL ASSURANCE, AS SPECIFIED IN THIS SECTION, TO COVER THE
INCREASE. IF THE CLOSURE COST ESTIMATE DECREASES, THE CREDIT MAY BE
REDUCED TO THE AMOUNT OF THE ADJUSTED CLOSURE COST ESTIMATE. AT THE
REQUEST OF THE OWNER OR OPERATOR, THE REGIONAL ADMINISTRATOR MUST SEND
WRITTEN NOTICE TO THE ISSUING BANK OF ANY REDUCTION IN THE REQUIRED
CREDIT WITHIN 30 DAYS AFTER RECEIVING THE REQUEST.
(5) THE LETTER OF CREDIT MUST CONTAIN A CLAUSE PROVIDING FOR
AUTOMATIC ANNUAL EXTENSIONS OF THE CREDIT, SUBJECT TO 60 DAYS' WRITTEN
NOTICE BY THE ISSUING BANK TO BOTH THE OWNER OR OPERATOR AND THE
REGIONAL ADMINISTRATOR, BU CERTIFIED MAIL, OF THE BANK'S INTENTION NOT
TO RENEW THE CREDIT. THE OWNER OR OPERATOR, WITHIN 5 DAYS OF RECEIVING
NOTICE OF NONRENEWAL FROM THE BANK, MUST NOTIFY THE REGIONAL
ADMINISTRATOR BY CERTIFIED MAIL THAT HE HAS RECEIVED SUCH A NOTICE. THE
OWNER OR OPERATOR MAY CANCEL THE LETTER OF CREDIT BY PROVIDING 30 DAYS'
NOTICE TO THE ISSUING BANK IF THE REGIONAL ADMINISTRATOR HAS GIVEN PRIOR
WRITTEN CONSENT BASED ON HIS HAVING RECEIVED EVIDENCE OF OTHER FINANCIAL
ASSURANCE AS SPECIFIED IN THIS SECTION.
(6) THIRTY DAYS AFTER RECEIVING A NOTICE OF NONRENEWAL FROM THE BANK
THE REGIONAL ADMINISTRATOR MAY DRAW UPON THE CREDIT UP TO THE FULL
AMOUNT OF THE CREDIT UNLESS HE HAS RECEIVED EVIDENCE THAT THE OWNER OR
OPERATOR HAS ESTABLISHED OTHER FINANCIAL ASSURANCE AS SPECIFIED IN THIS
SECTION. IF THE REGIONAL ADMINISTRATOR DRAWS UPON THE LETTER OF CREDIT
FOLLOWING A NOTICE OF NONRENEWAL, THE ISSUING BANK MUST, UNDER THE TERMS
OF THE LETTER, DEPOSIT THE AMOUNT OF THE DRAFT IMEEDIATELY AND DIRECTLY
INTO AN INTEREST-BEARING ESCROW ACCOUNT. DISBURSEMENTS FROM THE ESCROW
ACCOUNT MUST BE MADE IN THE SAME MANNER AS SPECIFIED FOR TRUST FUNDS IN
PARAGRAPHS (A) (12)-(16) OF THIS SECTION.
(7) IF THE CLOSURE COST ESTIMATE INCREASES BEYOND THE AMOUNT OF THE
FUNDS IN THE ESCROW ACCOUNT, THE OWNER OR OPERATOR MUST, WITHIN 30 DAYS
OF SUCH INCREASE, ADD TO THE ACCOUNT OR ESTABLISH OTHER FINANCIAL
ASSURANCE AS SPECIFIED IN THIS SECTION TO COVER THE INCREASE. IF THE
OWNER OR OPERATOR FAILS TO DO SO, THE REGIONAL ADMINISTRATOR MAY ORDER
HIM TO BEGIN CLOSURE.
(8) THE REGIONAL ADMINISTRATOR MAY OTHERWISE DRAW UPON THE LETTER OF
CREDIT ONLY UPON A LEGAL DETERMINATION OF A VIOLATION OF THE CLOSURE
REQUIREMENTS OF THESE REGULATIONS RENDERED IN A PROCEEDING BROUGHT
PURSUANT TO THE PROVISIONS OF SECTION 3008 OF RCRA. THE TERMS OF THE
LETTER MUST PROVIDE THAT, IF THE REGIONAL ADMINISTRATOR DRAWS UPON THE
LETTER OF CREDIT FOLLOWING SUCH A DETERMINATION, THE ISSUING BANK WILL
IMMEDIATELY AND DIRECTLY DEPOSIT THE AMOUNT OF THE DRAFT INTO AN
INTEREST-BEARING ESCROW ACCOUNT. THE LETTER MUST REQUIRE THE ESCROW
DEPOSITARY TO DISBURSE MONIES FROM THE ESCROW ACCOUNT TO PERSONS
DESIGNATED BY THE REGIONAL ADMINISTRATOR TO COMPLETE CLOSURE OF THE
FACILITY.
(D) USE OF MORE THAN ONE TYPE OF FINANCIAL INSTRUMENT. AN OWNER OR
OPERATOR MAY MEET THE REQUIREMENTS OF THIS SECTION BY ESTABLISHING MORE
THAN ONE TYPE OF FINANCIAL INSTRUMENT.
800519
FEDERAL REGISTER PART 8, VOLUME 45 NUMBER 98, PROPOSED RULE'S
EPA HAZARDOUS WASTE MANAGEMENT SYSTEM PROPOSED TO MODIFY 40 CFR PART
265, 264 SUBPART H, FINANCIAL REQUIREMENTS FOR OWNERS AND OPERATORS OF
HAZARDOUS WASTE MANAGEMENT FACILITIES, FRL 1459-7
PART 010 OF 20
COSTLE D M ADMINISTRATOR
EPA
113480
REGULATIONS
THESE INSTRUMENTS ARE LIMITED TO A TRUST FUND, SURETY BOND, OR
LETTER OF CREDIT AS SPECIFIED IN PARAGRAPHS (A), (B), AND (C),
RESPECTIVELY, OF THIS SECTION (E.G., A LETTER OF CREDIT MAY
ASSURE HALF THE CLOSURE COST AND A TRUST FUND THE REMAINING HALF).
(E) FINANCIAL TEST AND GUARANTY FOR CLOSURE. (1) AN OWNER OR
OPERATOR MAY MEET THE REQUIREMENTS OF THIS SECTION BY HAVING ALL
OF THE FOLLOWING FINANCIAL CHARACTERISTICS:
(I) AT LEAST $10 MILLION IN NET WORTH IN THE UNITED STATES.
(II) A TOTAL-LIABILITIES-TO-NET-WORTH RATION OF NOT MORE THAN THREE.
(III) NET WORKING CAPITAL IN THE UNITED STATES OF AT LEAST TWICE THE
ADJUSTED CLOSURE COST ESTIMATE (SEE SECTION 265.142). (2) THESE
CHARACTERISTICS MUST BE DEMONSTRATED IN A FINANCIAL STATEMENT WHICH HAS
BEEN AUDITED BY AN INDEPENDENT CERTIFIED PUBLIC ACCOUNTANT AND WHICH
CONTAINS UNCONSOLIDATED BALANCE SHEETS DATED NO MORE THAN 140 DAYS PRIOR
TO THE CURRENT DATE. THE OWNER OR OPERATOR WHO INTENDS TO USE A
FINANCIAL TEST TO MEET BOTH CLOSURE AND POST-CLOSURE REQUIREMENTS FOR A
SINGLE FACILITY OR TO MEET CLOSURE AND/OR POST-CLOSURE REQUIREMENTS FOR
MORE THAN ONE FACILITY MUST INDICATE IN THE STATEMENT WHICH REQUIREMENTS
FOR WHICH FACILITIES ARE TO BE MET THROUGH THE FINANCIAL TEST AND MUST
DEMONSTRATE THAT HIS NET WORKING CAPITAL IN THE UNITED STATES IS AT
LEAST TWICE THE SUM OF ALL THE ADJUSTED ESTIMATES OF CLOSURE AND
POST-CLOSURE COSTS TO BE COVERED BY THE FINANCIAL TEST. THE OWNER OR
OPERATOR MUST HAVE THE FINANCIAL STATEMENT AVAILABLE AT THE FACILITY AND
MUST PROVIDE DATA FROM THE STATEMENT IF REQUESTED AS PART OF ANNUAL
REPORTS TO THE REGIONAL ADMINISTRATOR UNDER SECTION 265.75.
(3) IF AT ANY TIME DURING THE OPERATING LIFE OF THE FACILITY THE
OWNER OR OPERATOR FAILS TO MEET THE REQUIREMENTS OF PARAGRAPH (E)(1) OF
THIS SECTION, HE MUST NOTIFY THE REGIONAL ADMINISTRATOR BY CERTIFIED
MAIL WITHIN 5 DAYS OF LEARNING OF FAILURE TO MEET THE REQUIREMENTS.
EVIDENCE OF OTHER FINANCIAL ASSURANCE AS SPECIFIED IN THIS SECTION MUST
BE SENT TO THE REGIONAL ADMINISTRATOR BY CERTIFIED MAIL WITHIN 30 DAYS
FROM THE TIME THAT THE OWNER OR OPERATOR LEARNS OF FAILURE TO MEET THE
REQUIREMENTS; OTHERWISE THE REGIONAL ADMINISTRATOR MAY ORDER HIM TO
BEGIN CLOSURE.
(4) AN OWNER OR OPERATOR MAY MEET THE REQUIREMENTS OF THIS SECTION BY
OBTAINING ANOTHER ENTITY'S WRITTEN GUARANTY PROVIDING FINANCIAL
ASSURANCE, IN AN AMOUNT EQUAL TO THE ADJUSTED CLOSURE COST ESTIMATE, FOR
THE OWNER'S OR OPERATOR'S COMPLIANCE WITH THE CLOSURE REQUIREMENTS OF
THESE REGULATIONS. THE GUARANTOR MUST MEET THE REQUIREMENTS FOR OWNERS
OR OPERATORS IN PARAGRAPHS (E)(1) AND (2) OF THIS SECTION.
(6) UNDER THE TERMS OF THE GUARANTY, THE GUARANTOR MUST NOTIFY THE
REGIONAL ADMINISTRATOR AND THE OWNER OR OPERATOR BY CERTIFIED MAIL IF HE
AT ANY TIME FAILS TO MEET THE REQUIREMENTS OF PARAGRAPH (E)(1) OF THIS
SECTION. THE GUARANTOR MUST SEND SUCH NOTICE WITHIN 5 DAYS AFTER
LEARNING OF FAILURE TO MEET THE REQUIREMENTS.
(7) THE OWNER OR OPERATOR MUST, WITHIN 30 DAYS OF RECEIVING SUCH
NOTIFICATION, ESTABLISH OTHER FINANCIAL ASSURANCE AS SPECIFIED IN THIS
SECTION AND PROVIDE EVIDENCE OF SUCH ASSURANCE TO THE REGIONAL
ADMINISTRATOR. IF HE FAILS TO DO SO, THE REGIONAL ADMINISTRATOR MAY
ORDER HIM TO BEGIN CLOSURE.
(8) THE GUARANTOR MAY CANCEL THE GUARANTY WITH 90 DAYS' NOTICE TO THE
REGIONAL ADMINISTRATOR AND THE OWNER OR OPERATOR BY CERTIFIED MAIL,
EXCEPT THAT THE GUARANTY MUST REMAIN IN EFFECT IF CLOSURE BEGINS OR IS
ORDERED TO BEGIN BY THE REGIONAL ADMINISTRATOR BEFORE THE END OF THE 90
DAYS. EVIDENCE OF OTHER FINANCIAL ASSURANCE AS SPECIFIED IN THIS
SECTION MUST BE PROVIDED TO THE REGIONAL ADMINISTRATOR WITHIN 30 DAYS
AFTER A NOTICE OF CANCELLATION IS RECEIVED BY THE REGIONAL
ADMINISTRATOR, OTHERWISE, HE MAY ORDER THE OWNER OR OPERATOR TO BEGIN
CLOSURE.
(9) THE GUARANTY MAY BE CANCELLED AT ANY TIME FOLLOWING THE MUTUAL
WRITTEN CONSENT OF THE OWNER OR OPERATOR, THE REGIONAL ADMINISTRATOR,
AND THE GUARANTOR.
(10) UNDER THE TERMS OF THE GUARANTY, IN THE EVENT OF A LEGAL
DETERMINATION OF A VIOLATION OF THE CLOSURE REQUIREMENTS RENDERED IN A
PROCEEDING BROUGHT PURSUANT TO SECTION 3008 OF RCRA, THE GUARANTOR MUST
PAY PARTIES DESIGNATED BY THE REGIONAL ADMINISTRATOR TO COMPLETE CLOSURE
IN ACCORDANCE WITH THE CLOSURE PLAN.
(F) REVENUE TEST FOR MUNICIPALITIES. (1) IF THE OWNER OR OPERATOR IS
A MUNICIPALITY (AS DEFINED BY RCRA), IT MAY MEET THE REQUIREMENTS OF
THIS SECTION BY HAVING ANNUAL REVENUES FROM PROPERTY, SALES, AND/OR
INCOME TAXES EQUAL TO 10 TIMES THE ADJUSTED CLOSURE COST ESTIMATE (SEE
SECTION 265.142). TO BE ACCEPTABLE, THESE TAX REVENUES MUST BE LEGALLY
AVAILABLE TO COVER CLOSURE RESPONSIBILITIES, I.E., THEY MUST NOT BE
DEDICATED TO OTHER PURPOSES OR OTHERWISE PRECLUDED FROM USE IN MEETING
CLOSURE RESPONSIBILITIES.
(2) THE OWNER OR OPERATOR MUST SEND A LETTER SIGNED BY THE CHIEF
FINANCIAL OFFICER OF THE MUNICIPALITY TO THE REGIONAL ADMINISTRATOR
STATING THAT THE MUNICIPALITY MEETS THE REQUIREMENTS OF PARAGRAPH (F)(1)
OF THIS SECTION. THE LETTER MUST BE SENT BY CERTIFIED MAIL WITHIN 10
DAYS AFTER THE OWNER OR OPERATOR BEGINS USE OF THE REVENUE TEST TO MEET
THE REQUIREMENTS OF THIS SECTION.
(3) IF AT ANY TIME DURING THE OPERATING LIFE OF THE FACILITY THE
ANNUAL TAX REVENUES FAIL TO MEET THE MINIMUM MULTIPLE SPECIFIED IN
PARAGRAPH (F)(1), THE OWNER OR OPERATOR MUST NOTIFY THE REGIONAL
ADMINISTRATOR BY CERTIFIED MAIL WITHIN 5 DAYS OF LEARNING OF FAILURE TO
MEET THE REQUIREMENT. THE OWNER OR OPERATOR MUST SEND EVIDENCE OF OTHER
FINANCIAL ASSURANCE AS SPECIFIED IN THIS SECTION TO THE REGIONAL
ADMINISTRATOR BY CERTIFIED MAIL WITHIN 30 DAYS FROM THE TIME THAT THE
OWNER OR OPERATOR LEARNS OF FAILURE TO MEET THE MINIMUM MULTIPLE;
OTHERWISE THE REGIONAL ADMINISTRATOR MAY ORDER THE OWNER OR OPERATOR TO
BEGIN CLOSURE.
(G) USE OF A SINGLE FINANCIAL MECHANISM FOR MULTIPLE FACILITIES. AN
OWNER OR OPERATOR MAY USE A SINGLE FINANCIAL MECHANISM, AS SPECIFIED IN
PARAGRAPHS (A) THROUGH (F) OF THIS SECTION, TO MEET THE REQUIREMENTS OF
THIS SECTION FOR MORE THAN ONE FACILITY OF WHICH HE IS THE OWNER OR
OPERATOR. THE AMOUNT OF FUNDS AVAILABLE THROUGH THE MECHANISM MUST BE
NO LESS THAN THE SUM OF FUNDS THAT WOULD BE AVAILABLE IF A SEPARATE
MECHANISM HAD BEEN ESTABLISHED FOR EACH FACILITY.
(H) RELEASE OF THE OWNER OR OPERATOR FROM THE REQUIREMENTS OF THIS
SECTION. WITHIN 60 DAYS OF RECEIVING CERTIFICATIONS FROM THE OWNER OR
OPERATOR AND AN INDEPENDENT REGISTERED PROFESSIONAL ENGINEER THAT
CLOSURE HAS BEEN ACCOMPLISHED IN ACCORDANCE WITH THE CLOSURE PLAN (SEE
SECTION 265.115), THE REGIONAL ADMINISTRATOR MUST, UNLESS HE HAS REASON
TO BELIEVE THAT CLOSURE HAS NOT BEEN IN ACCORDANCE WITH THE CLOSURE
PLAN, SEND A LETTER TO THE OWNER OR OPERATOR NOTIFYING HIM THAT HE NO
LONGER HAS TO COMPLY WITH THE REQUIREMENTS OF THIS SECTION FOR THE
FACILITY IN QUESTION. (COMMENT: IT SHOULD BE NOTTED THAT THIS LETTER
FROM THE REGIONAL ADMINISTRATOR TO THE OWNER OR OPERATOR RELEASES HIM
ONLY FROM REQUIREMENTS FOR FINANCIAL ASSURANCE FOR CLOSURE OF THE
FACILITY; IT DOES NOT RELEASE HIM FROM LEGAL RESPONSIBILITY FOR MEETING
THE CLOSURE STANDARDS.)
800519
FEDERAL REGISTER PART 8, VOLUME 45 NUMBER 98, PROPOSED RULE'S
EPA HAZARDOUS WASTE MANAGEMENT SYSTEM PROPOSED TO MODIFY 40 CFR PART
265, 264 SUBPART H, FINANCIAL REQUIREMENTS FOR OWNERS AND OPERATORS OF
HAZARDOUS WASTE MANAGEMENT FACILITIES, FRL 1459-7
PART 011 OF 20
COSTLE D M ADMINISTRATOR
EPA
113481
REGULATIONS
BY THE EFFECTIVE DATE OF THESE REGULATIONS, AN OWNER OR OPERATOR OF
EACH DISPOSAL FACILITY MUST ESTABLISH FINANCIAL ASSURANCE FOR 30 YEARS
OF POST-CLOSURE CARE OF THE FACILITY. HE MUST CHOOSE FROM AMONG THE
FOLLOWING OPTIONS:
(A) POST-CLOSURE TRUST FUND. (1) THE OWNER OR OPERATOR MAY ESTABLISH
A POST-CLOSURE TRUST FUND. THE TRUSTEE MUST BE A BANK OR OTHER
FINANCIAL INSTITUTION. THE BENEFICIARY OF THE TRUST FUND MUST BE THE
U.S. ENVIRONMENTAL PROTECTION AGENCY.
(2) THE TRUST AGREEMENT MUST BE EXECUTED ON EPA FORM 8700-19 (SEE
APPENDIX VI). THE OWNER OR OPERATOR MUST SEND THE PROPERLY EXECUTED
TRUST AGREEMENT TO THE REGIONAL ADMINISTRATOR BY CERTIFIED MAIL WITHIN
10 DAYS AFTER THE EFFECTIVE DATE OF THE AGREEMENT.
(3) REPLACEMENT OF A TRUST FUND WITH ANOTHER FORM OR FORMS OF
FINANCIAL ASSURANCE ALLOWED IN THIS SECTION MUST BE PRECEDED BY WRITTEN
CONSENT OF THE REGIONAL ADMINISTRATOR. THE OWNER OR OPERATOR MUST
REPORT ANY CHANGE OF TRUSTEE TO THE REGIONAL ADMINISTRATOR WITHIN 10
DAYS AFTER SUCH A CHANGE BECOMES EFFECTIVE.
(4) PAYMENTS TO THE TRUST FUND MUST BE IN CASH OR MARKETABLE
SECURITIES. THE VALUE OF EACH SECURITY MUST BE DETERMINED IN ACCORDANCE
WITH THE INTERNAL REVENUE SERVICE METHOD FOR VALUING SECURITIES FOR
ESTATE TAX PURPOSES (26 CFR 20.2031-2). IN ALL VALUATIONS OF THE TRUST
FUND FOR PURPOSES OF THESE REGULATIONS, SECURITIES MUST BE VALUED BY
THIS IRS METHOD.
(5) PAYMENTS TO THE POST-CLOSURE TRUST FUND MUST BE MADE ANNUALLY
OVER THE OPERATING LIFE OF THE FACILITY AS ESTIMATED IN THE CLOSURE PLAN
(SECTION 265.112(1)) OR 20 YEARS, WHICHEVER PERIOD IS SHORTER; THIS
PERIOD IS HEREAFTER REFERRED TO AS THE "PAY-IN" PERIOD. THE FIRST
PAYMENT MUST BE EQUAL TO THE ADJUSTED POST-CLOSURE COST ESTIMATE (SEE
SECTION 265.144) DIVIDED BY THE PAY-IN PERIOD IN YEARS. THE FIRST
PAYMENT MUST BE MADE BY THE EFFECTIVE DATE OF THESE REGULATIONS.
SUBSEQUENT PAYMENTS MUST BE MADE NO LATER THAN 30 DAYS AFTER EACH
ANNIVERSARY DATE OF THE FIRST PAYMENT. THE TRUST AGREEMENT MUST REQUIRE
THE TRUSTEE TO NOTIFY THE REGIONAL ADMINISTRATOR BY CERTIFIED MAIL
WITHIN 5 DAYS AFTER THE 30-DAY PERIOD IF HE DOES NOT RECEIVE PAYMENT
WITHIN SUCH PERIOD. UPON RECEIVING SUCH NOTIFICATION, THE REGIONAL
ADMINISTRATOR MAY ORDER THE FACILITY TO BEGIN CLOSURE UNLESS THE OWNER
OR OPERATOR HAS ESTABLISHED OTHER FINANCIAL ASSURANCE AS ALLOWED IN THIS
SECTION.
(6) THE OWNER OR OPERATOR MUST ADJUST THE AMOUNT OF EACH ANNUAL
PAYMENT AFTER THE FIRST ONE BY MULTIPLYING THE AMOUNT OF THE PREVIOUS
YEAR'S PAYMENT BY THE INFLATION FACTOR CALCULATED IN ACCORDANCE WITH
SECTION 265.142(C).
(7) IF A NEW POST-CLOSURE COST ESTIMATE IS PREPARED IN ACCORDANCE
WITH SECTION 265.144(B), THE NEXT ANNUAL PAYMENT MUST BE CALCULATED AS
FOLLOWS:
STEP 1 -- DIVIDE THE ADJUSTED POST-CLOSURE COST ESTIMATE BY THE
NUMBER OF YEARS IN THE PAY-IN PERIOD AS OF THE EFFECTIVE DATE OF THESE
REGULATIONS.
STEP 2 -- MULTIPLY THE RESULT BY THE NUMBER OF PAYMENTS MADE TO THE
FUND.
STEP 3 -- FROM THE RESULT OF STEP 2 SUBTRACT THE CURRENT VALUE OF THE
FUND. THE RESULT IS THE AMOUNT WHICH NEEDS TO BE DISTRIBUTED OVER THE
REMAINING PAY-IN PERIOD.
STEP 4 -- DIVIDE THE RESULT OF STEP 3 BY THE REMAINING YEARS IN
THE PAY-IN PERIOD.
STEP 5 -- ADD THE RESULT OF STEP 4 TO THE RESULT OF STEP 1 TO OBTAIN
THE NEW PAYMENT. (APPENDIX I PROVIDES AN EXAMPLE OF A CALCULATION OF A
NEW CLOSURE TRUST FUND PAYMENT USING THESE SAME STEPS.)
(8) THE OWNER OR OPERATOR MUST DETERMINE THE VALUE OF THE TRUST FUND
EACH YEAR DURING THE OPERATING LIFE OF THE FACILITY WITHIN 30 DAYS PRIOR
TO THE DATE EACH ANNUAL PAYMENT IS DUE TO BE MADE. IF THE TOTAL VALUE
OF THE FUND HAS DECREASED SINCE THE PREVIOUS YEAR'S VALUATION, THE NEXT
PAYMENT MUST BE CALCULATED USING THE STEPS IN PARAGRAPH (A)(7) OF THIS
SECTION. THE OWNER OR OPERATOR MAY ALSO USE THE CALCULATION IN
PARAGRAPH (A)(7) TO DETERMINE HIS NEXT PAYMENT IF THE VALUE OF THE FUND
HAS INCREASED. IF THE VALUE OF THE FUND EXCEEDS THE TOTAL AMOUNT OF THE
ADJUSTED POST-CLOSURE COST ESTIMATE, THE OWNER OR OPERATOR MAY SUBMIT A
WRITTEN REQUEST TO THE REGIONAL ADMINISTRATOR FOR RELEASE OF THE AMOUNT
IN EXCESS OF THE ADJUSTED POST-CLOSURE COST ESTIMATE. THIS REQUEST MUST
BE ACCOMPANIED BY A WRITTEN STATEMENT FROM THE TRUSTEE CONFIRMING THE
VALUE OF THE FUND.
(9) AN OWNER OR OPERATOR MAY ACCELERATE PAYMENTS INTO THE TRUST FUND
OR HE MAY DEPOSIT THE FULL AMOUNT OF THE POST-CLOSURE COST ESTIMATE AT
THE TIME THE FUND IS ESTABLISHED, BUT THE TRUST FUND MUST BE VALUED
ANNUALLY AND ITS VALUE MUST BE MAINTAINED AT NO LESS THAN THE VALUE THAT
THE FUND WOULD HAVE HAD IF PAYMENTS AND VALUATIONS HAD BEEN MADE AS
SPECIFIED IN PARAGRAPHS (A)(5)-(8) OF THIS SECTION.
(10) IF AN OWNER OR OPERATOR ESTABLISHES A POST-CLOSURE TRUST FUND
AFTER THE EFFECTIVE DATE OF THESE REGULATIONS, HAVING INITIALLY USED ONE
OF THE OTHER MECHANISMS SPECIFIED IN THIS SECTION, HIS FIRST PAYMENT
MUST BE IN THE AMOUNT THAT THE TRUST FUND WOULD HAVE CONTAINED IF IT HAD
BEEN ESTABLISHED ON THE EFFECTIVE DATE OF THESE REGULATIONS IN
ACCORDANCE WITH THE REQUIREMENTS OF THIS SECTION.
(11) IF THE OPERATING LIFE OF A FACILITY EXTENDS BEOND THE MAXIMUM
20-YEAR PAY-IN PERIOD, THE OWNER OR OPERATOR MUST DETERMINE THE VALUE OF
THE TRUST FUND EVERY YEAR AFTER THE 20TH YEAR UNTIL CLOSURE BEGINS.
WHENEVER THE POST-CLOSURE COST ESTIMATE CHANGES DURING THIS PERIOD IN
ACCORDANCE WITH SECTION 265.144(B) OR (C), THE OWNER OR OPERATOR MUST
COMPARE THE NEW ESTIMATE WITH THE LATEST ANNUAL VALUE OF THE FUND. IF
THE VALUE OF THE FUND IS LESS THAN THE AMOUNT OF THE ADJUSTED
POST-CLOSURE COST ESTIMATE, THE OWNER OR OPERATOR MUST DEPOSIT CASH OR
MARKETABLE SECURITIES INTO THE FUND SO THAT ITS VALUE EQUALS THE AMOUNT
OF THE ESTIMATE. SUCH PAYMENT MUST BE MADE WITHIN 60 DAYS OF THE CHANGE
IN THE POST-CLOSURE COST ESTIMATE. IF THE VALUE OF THE FUND IS GREATER
THAN THE TOTAL AMOUNT OF THE ADJUSTED POST-CLOSURE ESTIMATE, THE OWNER
OR OPERATOR MAY SUBMIT A WRITTEN REQUEST TO THE REGIONAL ADMINISTRATOR
FOR RELEASE OF FUNDS IN EXCESS OF THE ESTIMATE. THIS REQUEST MUST BE
ACCOMPANIED BY A WRITTEN STATEMENT FROM THE TRUSTEE CONFIRMING THE VALUE
OF THE FUND.
(12) WITHIN 30 DAYS AFTER RECEIVING A REQUEST FROM THE OWNER OR
OPERATOR FOR RELEASE OF EXCESS FUNDS AS SPECIFIED IN PARAGRAPHS (A)(8)
AND (11), THE REGIONAL ADMINISTRATOR MUST DIRECT THE TRUSTEE IN WRITING
TO RELEASE SUCH EXCESS FUNDS TO THE OWNER OR OPERATOR UNLESS THE
REGIONAL ADMINISTRATOR FINDS THAT THE POST-CLOSURE COST ESTIMATE WAS NOT
PREPARED AND ADJUSTED IN ACCORDANCE WITH SECTION 265.144.
(13) AN OWNER OR OPERATOR MAY REQUEST REIMBURSEMENT FOR POST-CLOSURE
EXPENDITURES BY SUBMITTING ITEMIZED BILLS TO THE REGIONAL ADMINISTRATOR.
WITHIN 30 DAYS AFTER RECEIVING THE BILLS FOR POST-CLOSURE ACTIVITIES,
THE REGIONAL ADMINISTRATOR MUST DIRECT THE TRUSTEE IN WRITING TO PAY
THOSE BILLS WHICH THE REGIONAL ADMINISTRATOR DETERMINES TO BE IN
ACCORDANCE WITH THE POST-CLOSURE PLAN OR ARE OTHERWISE JUSTIFIED.
(14) IF AN OWNER OR OPERATOR SUBSTITUTES ANOTHER FORM OF FINANCIAL
ASSURANCE SPECIFIED IN THIS SECTION FOR ALL OR PART OF THE TRUST FUND,
HE MAY APPLY TO THE REGIONAL ADMINISTRATOR FOR RELEASE OF FUNDS FROM THE
TRUST FUND. WITHIN 30 DAYS AFTER RECEIVING SUCH A REQUEST, THE REGIONAL
ADMINISTRATOR MUST DIRECT THE TRUSTEE IN WRITING TO RELEASE THE EXCESS
FUNDS TO THE OWNER OR OPERATOR.
(15) REVERSION OF EXCESS FUNDS AFTER CLOSURE.
(I) IF, UNDER THE PROVISIONS OF SECTION 265.117(D), THE REGIONAL
ADMINISTRATOR FOLLOWS TERMINATION OR REDUCTION OF SOME OR ALL OF THE
REQUIREMENTS OF A POST-CLOSURE PLAN BEFORE THE END OF THE 30-YEAR
PERIOD, THE EXCESS PORTION OF THE TRUST FUND MUST BE RELEASED BY THE
REGIONAL ADMINISTRATOR.
800519
FEDERAL REGISTER PART 8, VOLUME 45 NUMBER 98, PROPOSED RULE'S
EPA HAZARDOUS WASTE MANAGEMENT SYSTEM PROPOSED TO MODIFY 40 CFR PART
265, 264 SUBPART H, FINANCIAL REQUIREMENTS FOR OWNERS AND OPERATORS OF
HAZARDOUS WASTE MANAGEMENT FACILITIES, FRL 1459-7
PART 012 OF 20
COSTLE D M ADMINISTRATOR
EPA
113482
REGULATIONS
(II) AT THE END OF THE POST-CLOSURE CARE PERIOD OR THE END OF 30
YEARS OF POST-CLOSURE CARE, WHICHEVER COMES EARLIER, THE REGIONAL
ADMINISTRATOR MUST DIRECT THE TRUSTEE TO RELEASE ANY FUNDS REMAINING IN
THE TRUST TO THE OWNER OR OPERATOR.
(16) THE TERMS OF THE TRUST MUST REQUIRE THE TRUSTEE TO MAKE
DISBURSEMENTS AS SPECIFIED IN THIS PARAGRAPH. THE TRUSTEE WILL
DISBURSE MONIES FROM THE TRUST FUND TO PARTIES DESIGNATED BY THE
REGIONAL ADMINISTRATOR UPON WRITTEN NOTIFICATION FROM THE REGIONAL
ADMINISTRATOR THAT:
(I) THE VALUE OF THE TRUST FUND DURING THE OPERATING LIFE OF THE
FACILITY EXCEEDS THE AMOUNT OF THE ADJUSTED POST-CLOSURE COST ESTIMATE;
OR
(II) THE ITEMIZED BILLS ARE IN ACCORDANCE WITH THE APPROVED
POST-CLOSURE PLAN OR ARE OTHERWISE JUSTIFIED; OR
(III) THE OWNER OR OPERATOR HAS ESTABLISHED OTHER FINANCIAL ASSURANCE
FOR POST-CLOSURE CARE AS ALLOWED IN THIS SECION FOR PART OR ALL OF THE
TRUST FUND; OR
(IV) THERE HAS BEEN A LEGAL DETERMINATION, A COPY OF WHICH IS
ATTACHED TO THIS NOTIFICATION, OF A VIOLATION OF THE POST-CLOSURE
REQUIREMENTS OF THESE REGULATIONS RENDERED IN A PROCEEDING BROUGHT
PURSUANT TO SECTION 3008 OF RCRA; OR
(V) THE POST-CLOSURE CARE PERIOD HAS ENDED OR THE REQUIREMENTS FOR
POST-CLOSURE CARE HAVE BEEN REDUCED.
(B) SURETY BOND GUARANTEEING A LUMP-SUM PAYMENT FOR POST-CLOSURE
CARE. (1) AN OWNER OR OPERATOR MAY MEET THE REQUIREMENTS OF THIS
SECTION BY OBTAINING A SURETY BOND GUARANTEEING A LUMP-SUM PAYMENT INTO
A POST-CLOSURE TRUST FUND. A SURETY COMPANY ISSUING A BOND IN
ACCORDANCE WITH THESE REGULATIONS MUST, AT A MINIMUM, BE AUTHORIZED TO
DO BUSINESS IN THE UNITED STATES AND BE CERTIFIED BY THE U.S. TREASURY
DEPARTMENT, IN CIRCULAR 570, TO WRITE BONDS IN THE PENAL SUM OF THE BOND
TO BE ISSUED. THE OBLIGEE OF THE BOND MUST BE THE U.S. ENVIRONMENTAL
PROTECTION AGENCY.
(2) THE BOND MUST BE EXECUTED ON EPA FORM 8700-20 (SEE APPENDIX VII).
THE TERMS OF THE BOND MUST PROVIDE THAT THE SURETY WILL SEND THE
PROPERLY EXECYTED BOND TO THE REGIONAL ADMINISTRATOR BY CERTIFIED MAIL
WITHIN 10 DAYS AFTER THE EFFECTIVE DATE OF THE BOND.
(3) SUCH SURETY BOND MUST GUARANTEE THAT THE OWNER OR OPERATOR WILL,
WITHIN 30 DAYS AFTER THE BEGINNING OF CLOSURE OF THE FACILITY, PAY A
LUMP SUM EQUAL TO THE FINAL POST-CLOSURE COST ESTIMATE PREPARED IN
ACCORDANCE WITH SECTION 265.144 INTO A TRUST FUND THAT COMPLIES WITH THE
PROVISIONS OF PARAGRAPH (A) OF THIS SECTION. THE SURETY BOND MUST BE
WRITTEN SO THAT WHENEVER CLOSURE ACTIVITIES BEGIN OR ARE ORDERED TO
BEGIN BY THE REGIONAL ADMI-ISTRATOR DURING THE TERM OF THE BOND, THE
BOND COVERAGE INCLUDES COMPLETION OF THE PAYMENT OBLIGATION GUARANTEED
BY THE BOND.
(4) IF THE POST-CLOSURE COST ESTIMATE INCREASES BEYOND THE AMOUNT OF
THE PENAL SUM OF THE BOND, THE OWNER OR OPERATOR MUST, WITHIN 30 DAYS OF
SUCH INCREASE IN THE ESTIMATE, CAUSE THE PENAL SUM OF THE BOND TO BE
INCREASED OR OBTAIN OTHER FINANCIAL ASSURANCE, AS SPECIFIED IN THIS
SECTION, TO COVER THE INCREASE. IF THE POST-CLOSURE COST ESTIMATE
DECREASES, THE PENAL SUM OF THE BOND MAY BE REDUCED TO THE AMOUNT OF THE
ADJUSTED POST-CLOSURE COST ESTIMATE. AT THE REQUEST OF THE OWNER OR
OPERATOR, THE REGIONAL ADMINISTRATOR MUST SEND WRITTEN NOTICE TO THE
SURETY OF ANY REDUCTION IN THE REQUIRED PENAL SUM WITHIN 30 DAYS AFTER
RECEIVING THE REQUEST.
(5) THE TERMS OF THE SURETY BOND MUST PROVIDE THAT THE SURETY COMPANY
MAY CANCEL THE BOND BY SENDING NOTICE TO THE OWNER OR OPERATOR AND TO
THE REGIONAL ADMINISTRATOR BY CERTIFIED MAIL. CANCELLATION MUST NOT BE
EFFECTIVE FOR AT LEAST 90 DAYS AFTER THE REGIONAL ADMINISTRATOR RECEIVES
THE NOTICE. THE OWNER OR OPERATOR, WITHIN 5 DAYS OF RECEIVING A NOTICE
OF CANCELLATION FROM THE SURETY, MUST NOTIFY THE REGIONAL ADMINISTRATOR
BY CERTIFIED MAIL THAT HE HAS RECEIVED SUCH A NOTICE. THE OWNER OR
OPERATOR MAY CANCEL THE BOND BY PROVIDING 30 DAYS' NOTICE TO THE SURETY
COMPANY IF THE REGIONAL ADMINISTRATOR HAS GIVEN PRIOR WRITTEN CONSENT
BASED ON HIS HAVING RECEIVED EVIDENCE OF OTHER FINANCIAL ASSURANCE AS
SPECIFIED IN THIS SECTION.
(6) THIRTY DAYS AFTER RECEIVING A NOTICE OF CANCELLATION FROM THE
SURETY, THE REGIONAL ADMINISTRATOR MAY ORDER THE OWNER OR OPERATOR TO
BEGIN CLOSURE UNLESS THE REGIONAL ADMINISTRATOR HAS RECEIVED EVIDENCE OF
OTHER FINANCIAL ASSURANCE AS SPECIFIED IN THIS SECTION.
(7) A SURETY BECOMES LIABLE ON A BOND OBLIGATION ONLY WHEN THE
OWNER OR OPERATOR FAILS TO PERFORM AS GUARANTEED BY THE BOND AND
FAILS TO PROVIDE OTHER FINANCIAL ASSURANCE OF POST-CLOSURE CARE
AS SPECIFIED IN THIS SECTION.
(8) THE REGIONAL ADMINISTRATOR MUST NOTIFY THE SURETY IN WRITING
WITHIN 60 DAYS AFTER THE BEGINNING OF CLOSURE THAT THE OWNER OR OPERATOR
HAS:
(I) ESTABLISHED FINANCIAL ASSURANCE FOR POST-CLOSURE CARE THAT
SATISFIES THE REQUIREMENTS OF THIS SECTION; OR
(II) FAILED TO FULFILL THE PAYMENT OBLIGATION GUARANTEED BY THE BOND.
THE REGIONAL ADMINISTRATOR WILL THEN DIRECT THE SURETY IN THE PLACEMENT
OF FUNDS IN A TRUST FUND MEETING THE SPECIFICATIONS OF PARAGRAPH (A) OF
THIS SECTION.
(C) STANDBY LETTER OF CREDIT ASSURING A LUMP-SUM PAYMENT AT THE TIME
OF CLOSURE FOR POST-CLOSURE CARE. (1) AN OWNER OR OPERATOR MAY MEET THE
REQUIREMENTS OF THIS SECTION BY OBTAINING AN IRREVOCABLE STANDBY LETTER
OF CREDIT ASSURING A LUMP-SUM PAYMENT AT THE TIME OF CLOSURE TO PROVIDE
FOR POST-CLOSURE CARE. THE LETTER MUST BE WRITTEN IN FAVOR OF THE
REGIONAL ADMINISTRATOR OF THE U.S. ENVIRONMENTAL PROTECTION AGENCY AND
MUST BE FOR A PERIOD OF AT LEAST ONE YEAR. THE LETTER OF CREDIT MAY BE
ISSUED BY ANY BANK WHICH IS A MEMBER OF THE FEDERAL RESERVE SYSTEM.
(2) THE LETTER OF CREDIT MUST BE EXECUTED ON EPA FORM 8700-17 (SEE
APPENDIX IV). THE TERMS OF THE LETTER MUST PROVIDE THAT THE ISSUING
BANK WILL SEND THE PROPERLY EXECUTED LETTER OF CREDIT TO THE REGIONAL
ADMINISTRATOR BY CERTIFIED MAIL WITHIN 10 DAYS AFTER THE EFFECTIVE DATE
OF THE LETTER.
(3) THE CREDIT MUST BE ISSUED FOR AN AMOUNT EQUAL TO THE ADJUSTED
POST-CLOSURE COST ESTIMATE (SEE SECTION 265.144).
(4) IF THE POST-CLOSURE COST ESTIMATE INCREASES BEYOND THE AMOUNT OF
THE CREDIT, THE OWNER OR OPERATOR MUST, WITHIN 30 DAYS OF SUCH INCREASE
IN THE ESTIMATE, CAUSE THE CREDIT TO BE INCREASED OR OBTAIN OTHER
FINANCIAL ASSURANCE, AS SPECIFIED IN THIS SECTION, TO COVER THE
INCREASE. IF THE POST-CLOSURE COST ESTIMATE DECREASES, THE CREDIT MAY
BE REDUCED TO THE AMOUNT OF THE ADJUSTED POST-CLOSURE COST ESTIMATE. AT
THE REQUEST OF THE OWNER OR OPERATOR, THE REGIONAL ADMINISTRATOR MUST
SEND WRITTEN NOTICE TO THE ISSUING BANK OF ANY REDUCTION IN THE REQUIRED
CREDIT WITHIN 30 DAYS AFTER RECEIVING THE REQUEST.
(5) THE LETTER OF CREDIT MUST CONTAIN A CLAUSE PROVIDING FOR
AUTOMATIC ANNUAL EXTENSIONS OF THE CREDIT SUBJECT TO 60 DAYS' WRITTEN
NOTICE BY THE ISSUING BANK TO BOTH THE OWNER OR OPERATOR AND THE
REGIONAL ADMINISTRATOR, BY CERTIFIED MAIL, OF THE BANK'S INTENTION NOT
TO RENEW THE CREDIT. THE OWNER OR OPERATOR, WITHIN 5 DAYS OF RECEIVING
A NOTICE OF NONRENEWAL FROM THE BANK, MUST NOTIFY THE REGIONAL
ADMINISTRATOR BY CERTIFIED MAIL THAT HE HAS RECEIVED SUCH A NOTICE. THE
OWNER OR OPERATOR MAY CANCEL THE LETTER OF CREDIT BY PROVIDING 30 DAYS'
NOTICE TO THE ISSUING BANK IF THE REGIONAL ADMINISTRATOR HAS GIVEN PRIOR
WRITTEN CONSENT BASED ON HIS HAVING RECEIVED EVIDENCE OF OTHER FINANCIAL
ASSURANCE AS SPECIFIED IN THIS SECTION.
800519
FEDERAL REGISTER PART 8, VOLUME 45 NUMBER 98, PROPOSED RULE'S
EPA HAZARDOUS WASTE MANAGEMENT SYSTEM PROPOSED TO MODIFY 40 CFR PART
265, 264 SUBPART H, FINANCIAL REQUIREMENTS FOR OWNERS AND OPERATORS OF
HAZARDOUS WASTE MANAGEMENT FACILITIES, FRL 1459-7
PART 013 OF 20
COSTLE D M ADMINISTRATOR
EPA
113483
REGULATIONS
(6) THIRTY DAYS AFTER RECEIVING A NOTICE OF NONRENEWAL FROM THE BANK,
THE REGIONAL ADMINISTRATOR MAY DRAW UPON THE CREDIT UP TO THE FULL
AMOUNT OF THE CREDIT UNLESS HE HAS EVIDENCE THAT THE OWNER OR OPERATOR
HAS ESTABLISHED OTHER FINANCIAL ASSURANCE AS SPECIFIED IN THIS SECTION.
THE TERMS OF THE LETTER MUST PROVIDE THAT IF THE REGIONAL ADMINISTRATOR
DRAWS UPON THE LETTER OF CREDIT FOLLOWING A NOTICE OF NONRENEWAL THE
ISSUING BANK WILL DEPOSIT THE AMOUNT OF THE DRAFT IMMEDIATELY AND
DIRECTLY INTO AN INTEREST-BEARING ESCROW ACCOUNT. DISBURSEMENTS FROM
THE ESCROW ACCOUNT MUST BE MADE IN THE SAME MANNER AS SPECIFIED FOR
TRUST FUNDS IN PARAGRAPHS (A)(12)-(16) OF THIS SECTION.
(7) IF THE POST-CLOSURE COST ESTIMATE INCREASES BEYOND THE AMOUNT OF
THE FUNDS IN THE ESCROW ACCOUNT, THE OWNER OR OPERATOR MUST, WITHIN 30
DAYS OF SUCH INCREASE, ADD TO THE ACCOUNT OR ESTABLISH OTHER FINANCIAL
ASSURANCE AS SPECIFIED IN THIS SECTION TO COVER THE INCREASE. IF THE
OWNER OR OPERATOR FAILS TO DO SO, THE REGIONAL ADMINISTRATOR MAY ORDER
HIM TO BEGIN CLOSURE.
(8) THE REGIONAL ADMINISTRATOR MAY OTHERWISE DRAW ON THE CREDIT ONLY
IF THE OWNER OR OPERATOR FAILS TO ESTABLISH, WITHIN 30 DAYS AFTER THE
BEGINNING OF CLOSURE, OTHER FINANCIAL ASSURANCE FOR POST-CLOSURE CARE AS
SPECIFIED IN THIS SECTION. THE ISSUING BANK MUST, UNDER THE TERMS OF
THE LETTER, DEPOSIT THE AMOUNT OF SUCH A DRAFT IMMEDIATELY AND DIRECTLY
INTO AN INTEREST-BEARING ESCROW ACCOUNT. DISBURSEMENTS FROM THE ESCROW
ACCOUNT MUST BE MADE IN THE SAME MANNER AS SPECIFIED FOR TRUST FUNDS IN
PARAGRAPHS (A)(13)-(16) OF THIS SECTION.
(D) SURETY BOND GUARANTEEING PERFORMANCE OF POST-CLOSURE DUTIES. (1)
AN OWNER OR OPERATOR MAY MEET THE REQUIREMENTS OF THIS SECTION BY
OBTAINING A SURETY BOND GUARANTEEING PERFORMANCE OF POST-CLOSURE CARE.
A SURETY COMPANY ISSUING A BOND IN ACCORDANCE WITH THESE REGULATIONS
MUST, AT A MINIMUM, BE AUTHORIZED TO DO BUSINESS IN THE UNITED STATES
AND BE CERTIFIED BY THE U.S. TREASURY DEPARTMENT, IN CIRCULAR 570, TO
WRITE BONDS IN THE PENAL SUM OF THE BOND TO BE ISSUED. THE OBLIGEE OF
THE BOND MUST BE THE U.S. ENVIRONMENTAL PROTECTION AGENCY.
(2) THE BOND MUST BE EXECUTED ON EPA FORM 8700-21 (SEE APPENDIX
VIII). THE TERMS OF THE BOND MUST PROVIDE THAT THE SURETY WILL SEND THE
PROPERLY EXECUTED BOND TO THE REGIONAL ADMINISTRATOR BY CERTIFIED MAIL
WITHIN 10 DAYS AFTER THE EFFECTIVE DATE OF THE BOND.
(3) THE SURETY BOND MUST GUARANTEE THAT THE OWNER OR OPERATOR WILL
SATISFY THE POST-CLOSURE CARE REQUIREMENTS OF THESE REGULATIONS FOR 30
YEARS OR FOR THE POST-CLOSURE CARE PERIOD, WHICHEVER PERIOD IS SHORTER.
THE SURETY BOND MUST BE WRITTEN IN THE AMOUNT OF THE ADJUSTED
POST-CLOSURE COST ESTIMATE (SEE SECTION 265.144).
(4) IF THE POST-CLOSURE COST ESTIMATE INCREASES BEYOND THE AMOUNT OF
THE PENAL SUM OF THE BOND, THE OWNER OR OPERATOR MUST, WITHIN 30 DAYS OF
SUCH INCREASE IN THE ESTIMATE, CAUSE THE PENAL SUM OF THE BOND TO BE
INCREASED OR OBTAIN OTHER FINANCIAL ASSURANCE, AS SPECIFIED IN THIS
SECTION, TO COVER THE INCREASE. IF THE POST-CLOSURE COST ESTIMATE
DECREASES, THE PENAL SUM OF THE BOND MAY BE REDUCED TO THE AMOUNT OF THE
ADJUSTED POST-CLOSURE COST ESTIMATE. AT THE REQUEST OF THE OWNER OR
OPERATOR, THE REGIONAL ADMINISTRATOR MUST SEND WRITTEN NOTICE TO THE
SURETY OF ANY REDUCTION IN THE REQUIRED PENAL SUM WITHIN 30 DAYS AFTER
RECEIVING THE REQUEST.
(5) UNDER THE TERMS OF THE BOND, THE SURETY COMPANY MAY CANCEL THE
BOND DURING THE OPERATING LIFE OF THE FACILITY BY SENDING NOTICE TO THE
REGIONAL ADMINISTRATOR AND TO THE OWNER OR OPERATOR BY CERTIFIED MAIL.
CANCELLATION MUST NOT BE EFFECTIVE FOR AT LEAST 90 DAYS AFTER THE
REGIONAL ADMINISTRATOR RECEIVES THE NOTICE. THE OWNER OR OPERATOR,
WITHIN 5 DAYS OF RECEIVING NOTICE OF CANCELLATION FROM THE SURETY, MUST
NOTIFY THE REGIONAL ADMINISTRATOR BY CERTIFIED MAIL THAT HE HAS RECEIVED
SUCH A NOTICE. THE OWNER OR OPERATOR MAY CANCEL THE BOND AT ANY TIME BY
PROVIDING 30 DAYS' NOTICE TO THE SURETY COMPANY IF THE REGIONAL
ADMINISTRATOR HAS GIVEN PRIOR WRITTEN CONSENT BASED ON HIS HAVING
RECEIVED EVIDENCE OF OTHER FINANCIAL ASSURANCE AS SPECIFIED IN THIS
SECTION.
(6) THIRDY DAYS AFTER RECEIVING A CANCELLATION NOTICE FROM THE
SURETY, THE REGIONAL ADMINISTRATOR MAY ORDER THE OWNER OR OPERATOR TO
BEGIN CLOSURE UNLESS THE REGIONAL ADMINISTRATOR HAS RECEIVED EVIDENCE OF
OTHER FINANCIAL ASSURANCE AS SPECIFIED IN THIS SECTION.
(7) THE SURETY BOND MUST BE WRITTEN SO THAT WHENEVER CLOSURE
ACTIVITIES BEGIN OR THE REGIONAL ADMINISTRATOR ORDERS THEM TO BEGIN
DURING THE TERM OF THE BOND, THE BOND COVERAGE EXTENDS TO THE END OF 30
YEARS OF POST-CLOSURE CARE OR TO THE END OF THE POST-CLOSURE CARE
PERIOD, WHICHEVER IS SHORTER. THE OWNER OR OPERATOR, AS THE PRINCIPAL
OF THE BOND, MUST NOTIFY THE SURETY OF THE DATE ON WHICH POST-CLOSURE
CARE BEGINS IN ACCORDANCE WITH THE POST-CLOSURE PLAN FOR THE FACILITY.
(8) AS POST-CLOSURE OBLIGATIONS ARE COMPLETED, THE PENAL SUM OF THE
BOND MAY BE REDUCED COMMENSURATELY, SO THAT THE BALANCE OF THE PENAL SUM
OF THE BOND WILL EQUAL THE REMAINING COST OBLIGATIONS OF THE OWNER OR
OPERATOR FOR POST-CLOSURE CARE. AT THE REQUEST OF THE OWNER OR
OPERATOR, THE REGIONAL ADMINISTRATOR MUST SEND WRITTEN NOTICE TO THE
SURETY OF ANY REDUCTION IN THE REQUIRED PENAL SUM WITHIN 30 DAYS AFTER
RECEIVING THE REQUEST.
(9) A SURETY BECOMES LIABLE ON A BOND OBLIGATION ONLY WHEN A
PROCEEDING BROUGHT PURSUANT TO THE PROVISIONS OF SECTION 3008 OF RCRA
HAS DETERMINED THAT THE OWNER OR OPERATOR HAS VIOLATED THE POST-CLOSURE
REQUIREMENTS OF THESE REGULATIONS. FOLLOWING SUCH A DETERMINATION THE
SURETY MUST:
(I) COMPLETE POST-CLOSURE CARE OF THE FACILITY IN ACCORDANCE WITH THE
POST-CLOSURE PLAN; OR
(II) PAY THE AMOUNT OF THE PENAL SUM OF THE BOND INTO A TRUST FUND
MEETING THE SPECIFICATIONS OF PARAGRAPH (A) OF THIS SECTION AS DIRECTED
BY THE REGIONAL ADMINISTRATOR.
(E) STANDBY LETTER OF CREDIT ASSURING FUNDS DURING THE POST-CLOSURE
PERIOD. (1) AN OWNER OR OPERATOR MAY MEET THE REQUIREMENTS OF THIS
SECTION BY OBTAINING AN IRREVOCABLE STANDBY LETTER OF CREDIT ASSURING
AVAILABILITY OF FUNDS DURING THE POST-CLOSURE PERIOD. THE LETTER MUST
BE WRITTEN IN FAVOR OF THE REGIONAL ADMINISTRATOR OF THE U.S.
ENVIRONMENTAL PROTECTION AGENCY AND MUST BE FOR A PERIOD OF AT LEAST ONE
YEAR. THE LETTER OF CREDIT MAY BE ISSUED BY ANY BANK WHICH IS A MEMBER
OF THE FEDERAL RESERVE SYSTEM.
(2) THE LETTER OF CREDIT MUST BE EXECUTED ON EPA FORM 8700-17 (SEE
APPENDIX IV). THE TERMS OF THE LETTER MUST PROVIDE THAT THE ISSUING
BANK WILL SEND THE PROPERLY EXECUTED LETTER OF CREDIT TO THE REGIONAL
ADMINISTRATOR BY CERTIFIED MAIL WITHIN 10 DAYS AFTER THE EFFECTIVE DATE
OF THE LETTER.
(3) THE CREDIT MUST BE ISSUED FOR THE AMOUNT OF THE ADJUSTED
POST-CLOSURE COST ESTIMATE (SEE SECTION 265.144).
(4) IF THE POST-CLOSURE COST ESTIMATE INCREASES BEYOND THE AMOUNT OF
THE CREDIT, THE OWNER OR OPERATOR MUST, WITHIN 30 DAYS OF SUCH INCREASE
IN THE ESTIMATE, CAUSE THE AMOUNT OF THE CREDIT TO BE INCREASED OR
OBTAIN OTHER FINANCIAL ASSURANCE, AS SPECIFIED IN THIS SECTION, TO COVER
THE INCREASE. IF THE POST-CLOSURE COST ESTIMATE DECREASES, THE AMOUNT
OF THE CREDIT MAY BE REDUCED TO THE AMOUNT OF THE ADJUSTED POST-CLOSURE
COST ESTIMATE. AT THE REQUEST OF THE OWNER OR OPERATOR, THE REGIONAL
ADMINISTRATOR MUST SEND WRITTEN NOTICE TO THE SURETY OF ANY REDUCTION IN
THE REQUIRED CREDIT WITHIN 30 DAYS AFTER RECEIVING THE REQUEST.
800519
FEDERAL REGISTER PART 8, VOLUME 45 NUMBER 98, PROPOSED RULE'S
EPA HAZARDOUS WASTE MANAGEMENT SYSTEM PROPOSED TO MODIFY 40 CFR PART
265, 264 SUBPART H, FINANCIAL REQUIREMENTS FOR OWNERS AND OPERATORS OF
HAZARDOUS WASTE MANAGEMENT FACILITIES, FRL 1459-7
PART 014 OF 20
COSTLE D M ADMINISTRATOR
EPA
113484
REGULATIONS
(5) AS POST-CLOSURE OBLIGATIONS ARE COMPLETED, THE CREDIT GUARANTEE
MAY BE REDUCED COMMENSURATELY, SO THAT THE REMAINING CREDIT WILL EQUAL
THE REMAINING COST OBLIGATIONS OF THE OWNER OR OPERATOR FOR POST-CLOSURE
CARE. AT THE REQUEST OF THE OWNER OR OPERATOR, THE REGIONAL
ADMINISTRATOR MUST SEND WRITTEN NOTICE TO THE BANK OF ANY REDUCTION IN
THE REQUIRED CREDIT GUARANTEE WITHIN 30 DAYS AFTER RECEIVING THE
REQUEST.
(6) THE LETTER OF CREDIT MUST CONTAIN A CLAUSE PROVIDING FOR
AUTOMATIC ANNUAL EXTENSIONS OF THE CREDIT SUBJECT TO 60 DAYS' WRITTEN
NOTICE BY THE ISSUING BANK TO BOTH THE OWNER OR OPERATOR AND THE
REGIONAL ADMINISTRATOR, BY CERTIFIED MAIL, OF THE BANK'S INTENTION NOT
TO RENEW THE CREDIT. THE OWNER OR OPERATOR, WITHIN 5 DAYS OF RECEIVING
A NOTICE OF NONRENEWAL FROM THE BANK, MUST NOTIFY THE REGIONAL
ADMINISTRATOR BY CERTIFIED MAIL THAT HE HAS RECEIVED SUCH A NOTICE. THE
OWNER OR OPERATOR MAY CANCEL THE LETTER OF CREDIT BY PROVIDING 30 DAYS'
NOTICE TO THE ISSUING BANK IF THE REGIONAL ADMINISTRATOR HAS GIVEN PRIOR
WRITTEN CONSENT BASED ON HIS HAVING RECEIVED EVIDENCE OF OTHER FINANCIAL
ASSURANCE AS SPECIFIED IN THIS SECTION.
(7) THIRTY DAYS AFTER RECEIVING A NOTICE OF NONRENEWAL FROM THE BANK,
THE REGIONAL ADMINISTRATOR MAY DRAW UPON THE CREDIT UP TO THE FULL
AMOUNT OF THE CREDIT UNLESS HE HAS RECEIVED EVIDENCE THAT THE OWNER OR
OPERATOR HAS ESTABLISHED OTHER FINANCIAL ASSURANCE AS SPECIFIED IN THIS
SECTION. THE TERMS OF THE LETTER MUST PROVIDE THAT IF THE REGIONAL
ADMINISTRATOR DRAWS UPON THE LETTER OF CREDIT FOLLOWING A NOTICE OF
NONRENEWAL, THE ISSUING BANK WILL DEPOSIT THE AMOUNT OF THE DRAFT
IMMEDIATELY AND DIRECTLY INTO AN INTEREST-BEARING ESCROW ACCOUNT.
DISBURSEMENTS FROM THE ESCROW ACCOUNT MUST BE MADE IN THE SAME MANNER AS
SPECIFIED FOR TRUST FUNDS IN PARAGRAPHS (A)(12)-(16) OF THIS SECTION.
(8) IF THE ESCROW ACCOUNT SPECIFIED IN PARAGRAPH (E)(7) OF THIS
SECTION IS ESTABLISHED DURING OPERATING LIFE, AND IF THE POST-CLOSURE
COST ESTIMATE INCREASES BEYOND THE AMOUNT OF THE FUNDS IN THE ESCROW
ACCOUNT, THE OWNER OR OPERATOR MUST, WITHIN 30 DAYS OF SUCH INCREASE,
ADD TO THE ACCOUNT OR ESTABLISH OTHER FINANCIAL ASSURANCE AS SPECIFIED
IN THIS SECTION TO COVER THE INCREASE. IF THE OWNER OR OPERATOR FAILS
TO DO SO, THE REGIONAL ADMINISTRATOR MAY ORDER HIM TO BEGIN CLOSURE.
(9) THE REGIONAL ADMINISTRATOR MAY OTHERWISE DRAW UPON THE LETTER OF
CREDIT ONLY UPON A LEGAL DETERMINATION OF A VIOLATION OF THE
POST-CLOSURE REQUIREMENTS OF THESE REGULATIONS RENDERED IN A PROCEEDING
BROUGHT PURSUANT TO THE PROVISIONS OF SECTION 3008 OF RCRA. THE TERMS
OF THE LETTER MUST PROVIDE THAT IF THE REGIONAL ADMINISTRATOR DRAWS UPON
THE LETTER OF CREDIT FOLLOWING SUCH A DETERMINATION, THE ISSUING BANK
WILL IMMEDIATELY AND DIRECTLY DEPOSIT THE AMOUNT OF THE DRAFT INTO AN
INTEREST-BEARING ESCROW ACCOUNT. THE LETTER OF CREDIT MUST REQUIRE THE
ESCROW DEPOSITARY TO DISBURSE MONIES FROM THE ESCROW ACCOUNT TO PERSONS
DESIGNATED BY THE REGIONAL ADMINISTRATOR TO CARRY OUT POST-CLOSURE CARE
OF THE FACILITY.
(F) USE OF MORE THAN ONE TYPE OF FINANCIAL INSTRUMENT. AN OWNER OR
OPERATOR MAY MEET THE REQUIREMENTS OF THIS SECTION BY ESTABLISHING MORE
THAN ONE TYPE OF FINANCIAL INSTRUMENT. THESE INSTRUMENTS ARE LIMITED TO
A TRUST FUND, SURETY BONDS, OR LETTERS OF CREDIT AS SPECIFIED IN
PARAGRAPHS (A) THROUGH (E) OF THIS SECTION (E.G., A LETTER OF CREDIT MAY
ASSURE HALF THE POST-CLOSURE COST AND A TRUST FUND THE REMAINING HALF).
(G) FINANCIAL TEST AND GUARANTY FOR POST-CLOSURE CARE. (1) AN OWNER
OR OPERATOR MAY MEET THE REQUIREMENTS OF THIS SECTION BY HAVING ALL OF
THE FOLLOWING FINANCIAL CHARACTERISTICS:
(I) AT LEAST $10 MILLION IN NET-WORTH IN THE UNITED STATES.
(II) A TOTAL-LIABILITIES-TO-NET-WORTH RATIO OF NOT MORE THAN THREE.
(III) NET WORKING CAPITAL IN THE UNITED STATES OF AT LEAST TWICE THE
ADJUSTED POST-CLOSURE COST ESTIMATE (SEE SECTION 265.144).
(2) THESE CHARACTERISTICS MUST BE DEMONSTRATED IN A FINANCIAL
STATEMENT WHICH HAS BEEN AUDITED BY AN INDEPENDENT CERTIFIED PUBLIC
ACCOUNTANT AND WHICH CONTAINS UNCONSOLIDATED BALANCE SHEETS DATED NO
MORE THAN 140 DAYS PRIOR TO THE CURRENT DATE. THE OWNER OR OPERATOR WHO
INTENDS TO USE A FINANCIAL TEST TO MEET BOTH CLOSURE AND POST-CLOSURE
REQUIREMENTS FOR A SINGLE FACILITY OR TO MEET CLOSURE AND/OR
POST-CLOSURE REQUIREMENTS FOR MORE THAN ONE FACILITY MUST INDICATE IN
THE STATEMENT WHICH REQUIREMENTS ARE TO BE MET FOR WHICH FACILITIES
THROUGH THE FINANCIAL TEST AND MUST DEMONSTRATE THAT HIS NET WORKING
CAPITAL IN THE UNITED STATES IS AT LEAST TWICE THE SUM OF ALL THE
ADJUSTED ESTIMATES OF CLOSURE AND POST-CLOSURE COSTS TO BE COVERED BY
THE FINANCIAL TEST. THE OWNER OR OPERATOR MUST HAVE THE FINANCIAL
STATEMENT AVAILABLE AT THE FACILITY AND MUST PROVIDE DATA FROM THE
STATEMENT IF REQUESTED AS PART OF ANNUAL REPORTS TO THE REGIONAL
ADMINISTRATOR UNDER SECTION 265.75.
(3) IF THE OWNER OR OPERATOR FAILS TO MEET THE REQUIREMENTS OF
PARAGRAPH (G)(1) OF THIS SECTION AT ANY TIME BEFORE THE END OF THE
POST-CLOSURE CARE PERIOD OR 30 YEARS OF POST-CLOSURE CARE, WHICHEVER
COMES EARLIER, HE MUST NOTIFY THE REGIONAL ADMINISTRATOR BY CERTIFIED
MAIL WITHIN 5 DAYS OF LEARNING OF FAILURE TO MEET THE REQUIREMENTS.
EVIDENCE OF OTHER FINANCIAL ASSURANCE AS SPECIFIED IN THIS SECTION MUST
BE SENT TO THE REGIONAL ADMINISTRATOR BY CERTIFIED MAIL WITHIN 30 DAYS
FROM THE TIME THAT THE OWNER OR OPERATOR LEARNS OF FAILURE TO MEET THE
REQUIREMENTS OF PARAGRAPH (G)(1). IF HE DOES NOT ESTABLISH OTHER
FINANCIAL ASSURANCE, AND THIS LASE IN FINANCIAL ASSURANCE OCCURS DURING
OPERATING LIFE, THE REGIONAL ADMINISTRATOR MAY ORDER THE OWNER OR
OPERATOR TO BEGIN CLOSURE.
(4) AN OWNER OR OPERATOR MAY MEET THE REQUIREMENTS OF THIS SECTION BY
OBTAINING ANOTHER ENTITY'S WRITTEN GUARANTY PROVIDING FINANCIAL
ASSURANCE, IN AN AMOUNT EQUAL TO THE ADJUSTED POST-CLOSURE COST
ESTIMATE, FOR COMPLIANCE BY THE OWNER OR OPERATOR WITH THE POST-CLOSURE
REQUIREMENTS OF THESE REGULATIONS. THE GUARANTOR MUST MEET THE
REQUIREMENTS FOR OWNERS OR OPERATORS IN PARAGRAPHS (G) (1) AND (2) OF
THIS SECTION.
(5) THE GUARANTY MUST BE EXECUTED ON EPA FORM 8700-18 (SEE APPENDIX
V). THE OWNER OR OPERATOR MUST SEND THE PROPERLY EXECUTED GUARANTY TO
THE REGIONAL ADMINISTRATOR BY CERTIFIED MAIL WITHIN 10 DAYS AFTER THE
EFFECTIVE DATE OF THE GUARANTY.
(6) UNDER THE TERMS OF THE GUARANTY, THE GUARANTOR MUST NOTIFY
THE REGIONAL ADMINISTRATOR AND THE OWNER OR OPERATOR BY CERTIFIED
MAIL IF HE FAILS TO MEET THE REQUIREMENTS OF PARAGRAPH (G)(1) OF
THIS SECTION AT ANY TIME BEFORE THE END OF THE POST-CLOSURE PERIOD
OR THE END OF 30 YEARS OF POST-CLOSURE CARE, WHICHEVER COMES
EARLIER. THE GUARANTOR MUST SEND SUCH NOTICE WITHIN 5 DAYS AFTER
LEARNING OF FAILURE TO MEET THE REQUIREMENTS.
(7) THE OWNER OR OPERATOR MUST, WITHIN 30 DAYS OF SUCH NOTIFICATION,
ESTABLISH OTHER FINANCIAL ASSURANCE AS SPECIFIED IN THIS SECTION AND
PROVIDE EVIDENCE OF SUCH ASSURANCE TO THE REGIONAL ADMINISTRATOR. IF HE
FAILS TO DO SO, AND SUCH FAILURE OCCURS DURING OPERATING LIFE, THE
REGIONAL ADMINISTRATOR MAY ORDER HIM TO BEGIN CLOSURE.
(8) THE GUARANTOR MAY CANCEL THE GUARANTY DURING THE OPERATING LIFE
OF THE FACILITY WITH 90 DAYS' NOTICE TO THE REGIONAL ADMINISTRATOR AND
THE OWNER OR OPERATOR BY CERTIFIED MAIL, EXCEPT THAT THE GUARANTY MUST
REMAIN IN EFFECT IF CLOSURE BEGINS OR IS ORDERED TO BEGIN BY THE
REGIONAL ADMINISTRATOR BEFORE THE END OF THE 90 DAYS. EVIDENCE OF OTHER
FINANCIAL ASSURANCE AS SPECIFIED IN THIS SECTION MUST BE PROVIDED TO THE
REGIONAL ADMINISTRATOR WITHIN 30 DAYS AFTER A NOTICE OF CANCELLATION IS
RECEIVED BY THE REGIONAL ADMINISTRATOR, OTHERWISE, HE MAY ORDER THE
OWNER OR OPERATOR TO BEGIN CLOSURE.
800519
FEDERAL REGISTER PART 8, VOLUME 45 NUMBER 98, PROPOSED RULE'S
EPA HAZARDOUS WASTE MANAGEMENT SYSTEM PROPOSED TO MODIFY 40 CFR PART
265, 264 SUBPART H, FINANCIAL REQUIREMENTS FOR OWNERS AND OPERATORS OF
HAZARDOUS WASTE MANAGEMENT FACILITIES, FRL 1459-7
PART 015 OF 20
COSTLE D M ADMINISTRATOR
EPA
113485
REGULATIONS
(9) THE GUARANTY MAY BE CANCELLED AT ANY TIME FOLLOWING THE MUTUAL
WRITTEN CONSENT OF THE OWNER OR OPERATOR, THE REGIONAL ADMINISTRATOR,
AND THE GUARANTOR.
(10) UNDER THE GUARANTY, IN THE EVENT OF A LEGAL DETERMINATION OF A
VIOLATION OF THE POST-CLOSURE REQUIREMENTS RENDERED IN A PROCEEDING
BROUGHT PURSUANT TO SECTION 3008 OF RCRA, THE GUARANTOR MUST PAY PARTIES
DESIGNATED BY THE REGIONAL ADMINISTRATOR TO COMPLETE POST-CLOSURE CARE
FOR 30 YEARS OR THE POST-CLOSURE CARE PERIOD, WHICHEVER PERIOD IS
SHORTER.
(H) REVENUE TEST FOR MUNICIPALITIES. (1) IF THE OWNER OR OPERATOR IS
A MUNICIPALITY (AS DEFINED BY RCRA), IT MAY MEET THE REQUIREMENTS OF
THIS SECTION BY HAVING ANNUAL REVENUES FROM PROPERTY, SALES, AND/OR
INCOME TAXES EQUAL TO 10 TIMES THE ADJUSTED POST-CLOSURE COST ESTIMATE
(SEE SECTION 265.144). TO BE ACCEPTABLE, THESE TAX REVENUES MUST BE
LEGALLY AVAILABLE TO COVER POST-CLOSURE RESPONSIBILITIES, I.E., THEY
MUST NOT BE DEDICATED TO OTHER PURPOSES OR OTHERWISE PRECLUDED FROM USE
FOR POST-CLOSURE CARE.
(2) THE OWNER OR OPERATOR MUST SEND A LETTER SIGNED BY THE CHIEF
FINANCIAL OFFICER OF THE MUNICIPALITY TO THE REGIONAL ADMINISTRATOR
STATING THAT THE MUNCIPALITY MEETS THE REQUIREMENTS OF PARAGRAPH (H)(1)
OF THIS SECTION. THE LETTER MUST BE SENT BY CERTIFIED MAIL WITHIN 10
DAYS AFTER THE OWNER OR OPERATOR BEGINS USE OF THE REVENUE TEST TO MEET
THE REQUIREMENTS OF THIS SECTION.
(3) IF THE ANNUAL TAX REVENUES FAIL TO MEET THE MINIMUM MULTIPLE
SPECIFIED IN PARAGRAPH (H)(1) AT ANY TIME BEFORE THE END OF THE
POST-CLOSURE CARE PERIOD OR 30 YEARS OF POST-CLOSURE CARE, WHICHEVER
COMES EARLIER, THE OWNER OR OPERATOR MUST NOTIFY THE REGIONAL
ADMINISTRATOR BY CERTIFIED MAIL WITHIN 5 DAYS OF LEARNING OF FAILURE TO
MEET THE REQUIREMENTS. THE OWNER OR OPERATOR MUST SEND EVIDENCE OF
OTHER FINANCIAL ASSURANCE AS SPECIFIED IN THIS SECTION TO THE REGIONAL
ADMINISTRATOR BY CERTIFIED MAIL WITHIN 30 DAYS FROM THE TIME THAT THE
OWNER OR OPERATOR LEARNS OF FAILURE TO MEET THE MINIMUM MULTIPLE. IF HE
DOES NOT ESTABLISH OTHER FINANCIAL ASSURANCE, AND THIS LAPSE IN
FINANCIAL ASSURANCE OCCURS DURING OPERATING LIFE, THE REGIONAL
ADMINISTRATOR MAY ORDER THE OWNER OR OPERATOR TO BEGIN CLOSURE.
(I) USE OF A SINGLE FINANCIAL MECHANISM FOR MULTIPLE FACILITIES. AN
OWNER OR OPERATOR MAY USE A SINGLE FINANCIAL MECHANISM, AS SPECIFIED IN
PARAGRAPHS (A) THROUGH (H) OF THIS SECTION, TO MEET THE REQUIREMENTS OF
THIS SECTION FOR MORE THAN ONE FACILITY OF WHICH HE IS THE OWNER OR
OPERATOR. THE AMOUNT OF FUNDS AVAILABLE THROUGH THE MECHANISM MUST BE
NO LESS THAN THE SUM OF FUNDS THAT WOULD BE AVAILABLE IF A SEPARATE
MECHANISM HAD BEEN ESTABLISHED FOR EACH FACILITY.
AN OWNER OR OPERATOR MAY USE A SINGLE MECHANISM TO PROVIDE FINANCIAL
ASSURANCE FOR BOTH CLOSURE AND POST-CLOSURE CARE OF ONE OR MORE
FACILITIES OF WHICH HE IS THE OWNER OR OPERATOR. SUCH A MECHANISM MUST
BE ONE OF THE FOLLOWING:
(A) A TRUST FUND THAT MEETS THE SPECIFICATIONS OF BOTH SECTION
265.143(A) AND SECTION 265.145(A).
(B) A SURETY BOND THAT MEETS THE SPECIFICATIONS OF BOTH SECTION
265.143(B) AND SECTION 265.145 (B) OR (D).
(C) A LETTER OF CREDIT THAT MEETS THE SPECIFICATIONS OF BOTH SECTION
265.143(C) AND SECTION 265.145(C) OR (E).
(D) A GUARANTY THAT MEETS THE SPECIFICATIONS OF BOTH SECTION
265.143(E) AND SECTION 265.145(G).
(E) THE FINANCIAL TEST AS SPECIFIED UNDER BOTH SECTION 265.143(E)
AND SECTION 265.145(G).
(F) THE REVENUE TEST AS SPECIFIED UNDER BOTH SECTION 265.143(F) AND
SECTION 265.145(H).
THE AMOUNT OF FUNDS AVAILABLE UNDER THE MECHANISM MUST BE NO LESS
THAN THE SUM OF FUNDS THAT WOULD BE AVAILABLE IF A SEPARATE MECHANISM
HAD BEEN ESTABLISHED FOR FINANCIAL ASSURANCE OF CLOSURE AND OF
POST-CLOSURE CARE OF EACH FACILITY.
AN OWNER OR OPERATOR OF A HAZARDOUS WASTE TREATMENT, STORAGE, OR
DISPOSAL FACILITY OR GROUP OF FACILITIES MUST HAVE AND MAINTAIN
LIABILITY INSURANCE FROM AN INSURER LICENSED OR ELIGIBLE TO INSURE
FACILITIES IN THE JURISDICTION WHERE ANY ONE FACILITY IS LOCATED, FOR
SUDDEN AND ACCIDENTAL OCCURRENCES IN THE AMOUNT OF $1 MILLION PER
OCCURRENCE WITH AN ANNUAL AGGREGATE PER FIRM OF $2 MILLION, EXCLUSIVE OF
LEGAL DEFENSE COSTS, FOR CLAIMS ARISING OUT OF INJURY TO PERSONS OR
PROPERTY FROM THE OPERATIONS OF EACH SUCH HAZARDOUS WASTE FACILITY OR
GROUP OF FACILITIES. THE DEDUCTIBLE WRITTEN INTO THE INSURANCE POLICY
MUST NOT EXCEED 5 PERCENT OF THE PER INCIDENT LIMIT OF LIABILITY OF THE
POLICY.
(A) A FACILITY MAY BE LOCATED IN A STATE IN WHICH EXISTING HAZARDOUS
WASTE REGULATIONS INCLUDE LIABILITY REQUIREMENTS AND REQUIREMENTS FOR
FINANCIAL ASSURANCE FOR CLOSURE AND POST-CLOSURE CARE. IF SO, THE OWNER
OR OPERATOR MAY USE EXISTING STATE-AUTHORIZED FINANCIAL MECHANISMS IN
MEETING THE REQUIREMENTS OF SECTIONS 265.143, 265.145, AND 265.147
PROVIDED THAT:
(1) THE STATE-AUTHORIZED MECHANISM IS A MECHANISM ALLOWED IN SECTIONS
265.143, 265.145, OR 265.147; OR
(2) THE STATE MECHANISM PROVIDES SUBSTANTIALLY EQUIVALENT ASSURANCE
(E.G., ESCROW ACCOUNT) OF LIABILITY COVERAGE AS THE MECHANISMS OF
SECTIONS 265.143, 265.145, AND 265.147.
THE OWNER OR OPERATOR MUST OBTAIN AN ADDITIONAL FINANCIAL ASSURANCE
MECHANISM FOR CLOSURE OR FOR POST-CLOSURE CARE, CHOSEN FROM SECTION
265.143 FOR CLOSURE AND FROM SECTION 265.145 FOR POST-CLOSURE CARE, OR
ADDITIONAL LIABILITY INSURANCE AS SPECIFIED IN SECTION 265.147, IF THE
AMOUNT OF FUNDS AVAILABLE FROM THE STATE MECHANISMS IS LESS THAN THAT
REQUIRED BY THIS SUBPART. THE TOTAL AMOUNT OF FUNDS AVAILABLE THROUGH
THE COMBINATION OF THE STATE AND FEDERAL MECHANISMS MUST EQUAL AT LEAST
THE AMOUNT REQUIRED IN SECTIONS 265.143, 265.145, AND 265.147.
(B) IF A STATE ASSUMES LEGAL RESPONSIBILITY FOR AN OWNER'S OR
OPERATOR'S COMPLIANCE WITH THE CLOSURE OR POST-CLOSURE REQUIREMENTS OR
LIABILITY REQUIREMENTS OF THESE REGULATIONS OR ASSURES THAT FUNDS WILL
BE AVAILABLE FROM REQUIREMENTS, THE OWNER OR OPERATOR WILL BE IN
COMPLIANCE WITH SUCH REQUIREMENTS OF THIS SUBPART TO THE EXTENT THE
STATE'S ASSURANCES ARE SUBSTANTIALLY EQUIVALENT TO MEETING THE
REQUIREMENTS OF THIS SUBPART. THE OWNER OR OPERATOR MUST SEND A LETTER
TO THE REGIONAL ADMINISTRATOR DESCRIBING THE NATURE OF THE STATE'S
RESPONSIBILITY REGARDING HIS FACILITY'S CLOSURE, POST-CLOSURE CARE,
AND/OR HIS LIABILITY, AND CITING THE STATE REGULATION PROVIDING FOR SUCH
ASSUMPTION OF RESPONSIBILITY. THE LETTER MUST BE SENT BY CERTIFIED MAIL
WITHIN 10 DAYS AFTER THE EFFECTIVE DATE OF THESE EPA REGULATIONS OR THE
DATE ON WHICH STATE ASSUMPTION OF RESPONSIBILITY FOR THE FACILITY
BECOMES EFFECTIVE. A COPY OF THE LETTER MUST BE SENT TO THE RESPONSIBLE
STATE AGENCY(IES).
800519
FEDERAL REGISTER PART 8, VOLUME 45 NUMBER 98, PROPOSED RULE'S
EPA HAZARDOUS WASTE MANAGEMENT SYSTEM PROPOSED TO MODIFY 40 CFR PART
265, 264 SUBPART H, FINANCIAL REQUIREMENTS FOR OWNERS AND OPERATORS OF
HAZARDOUS WASTE MANAGEMENT FACILITIES, FRL 1459-7
PART 016 OF 20
COSTLE D M ADMINISTRATOR
EPA
113486
REGULATIONS
/1/ IF CLOSURE OF MORE THAN ONE FACILITY IS COVERED BY THE TRUST,
LIST ON A SEPARATE SHEET THE EPA FACILITY IDENTIFICATION NUMBERS, NAMES,
AND ADDRESSES, AND ADJUSTED CLOSURE COST ESTIMATES FOR ALL THE
FACILITIES, CLEARLY LABEL THIS LIST "SCHEDULE A," AND ATTACH IT TO THIS
AGREEMENT. SHOW TOTAL OF COST ESTIMATES.
/2/ LIST PROPERTY INCLUDED IN INITIAL TRANSFER ON SEPARATE SHEET,
CLEARLY LABEL THIS LIST "SCHEDULE B," AND ATTACH IT TO THIS AGREEMENT.
/3/ IF CLOSURE OF MORE THAN ONE FACILITY IS COVERED BY THE BOND, LIST
ON A SEPARATE SHEET THE EPA FACILITY IDENTIFICATION NUMBERS, NAMES,
ADDRESSES, AND ADJUSTED CLOSURE COST ESTIMATES FOR ALL THE FACILITIES,
CLEARLY LABEL THIS LIST "SCHEDULE A," AND ATTACH IT TO THIS BOND. SHOW
TOTAL OF COST ESTIMATES.
THE FOLLOWING IS AN EXAMPLE OF THE CALCULATION IN SECTION 265.143
(A)(7) USING THESE ASSUMPTIONS: THE CLOSURE COST ESTIMATE AT THE TIME
THE CLOSURE TRUST FUND WAS ESTABLISHED WAS $70,000. FIVE ANNUAL
PAYMENTS HAVE BEEN MADE. THE CURRENT VALUE OF THE FUND IS $25,000
(INCLUDING EARNINGS OF THE FUND AND YEARLY INCREASES IN THE PAYMENTS AS
A RESULT OF THE ADJUSTMENT FOR INFLATION REQUIRED BY PARAGRAPH (A)(6)).
THE TOTAL PAY-IN PERIOD IS 20 YEARS. NOW THE OWNER OR OPERATOR HAS
CHANGED THE ESTIMATE TO $120,000 BECAUSE OF A CHANGE IN THE CLOSURE PLAN
AND THEREFORE NEEDS TO RECALCULATE HIS NEXT PAYMENT.
STEP 1 -- THE ADJUSTED ESTIMATE, $120,000, DIVIDED BY THE PAY-IN
PERIOD, 20 YEARS, IS $6,000.
STEP 2 -- $6,000 MULTIPLIED BY THE NUMBER OF PAYMENTS MADE, 5, IS
$30,000.
STEP 3 -- $30,000 MINUS THE CURRENT VALUE OF THE FUND, $25,000,
IS $5,000.
STEP 4 -- $5,000 DIVIDED BY THE REMAINING YEARS IN THE PAY-IN
PERIOD, 15, IS $333.
STEP 5 -- ADDING $333 TO THE $6,000 FROM STEP 1 GIVES THE NEW
PAYMENT, $6,333.
EPA FORM 8700-15
U.S. ENVIRONMENTAL PROTECTION AGENCY
CLOSURE TRUST AGREEMENT
AS PROVIDED FOR IN 40 CFR 265.143(A) UNDER AUTHORITY OF THE RESOURCE
CONSERVATION AND RECOVERY ACT OF 1976, AS AMENDED (42 USC 6901) /1/ EPA
FACILITY IDENTIFICATION NO. . . .ADJUSTED CLOSURE COST ESTIMATE, IN
ACCORDANCE WITH 40 CFR 265.142: $. . .
ON THIS . . . DAY OF . . ., 19. . ., I (OWNER OR OPERATOR). . ., AM
PLACING PROPERTY DESCRIBED BELOW IN TRUST FOR THE U.S. ENVIRONMENTAL
PROTECTION AGENCY (EPA) TO BE HELD BY (NAME OF FINANCIAL INSTITUTION). .
.AS TRUSTEE UNDER THE TERMS SET FORTH BELOW. THE TRUST SHALL BE NAMED
THE "CLOSURE TRUST" FOR THE FOLLOWING HAZARDOUS WASTE MANAGEMENT
FACILITIES:. . . . . . . . (NAME AND ADDRESS OF FACILITY, OR WRITE IN
"SEE ATTACHED SCHEDULE A" /1/ IF MORE THAN ONE FACILITY).
1. PURPOSE CLAUSE
PURSUANT TO THE FINANCIAL ASSURANCE REQUIREMENTS OF 40 CFR 265.143,
THE PURPOSE OF THIS TRUST IS TO PAY FOR THE COSTS OF CLOSING THE
ABOVE-NAMED FACILITY(IES) IN ACCORDANCE WITH THE CLOSURE REQUIREMENTS OF
40 CFR PART 265.
2. PROPERTY CLAUSE
IT IS AGREED TO BY (OWNER OR OPERATOR) . . . AS GRANTOR OF THIS TRUST
THAT THE TRUST WILL BE FUNDED IN ACCORDANCE WITH THE REQUIREMENTS OF
SECTION 265.143(A) OF THE REGULATIONS. THE INITIAL TRANSFER OF PROPERTY
TO THE TRUST SHALL CONSIST OF THE PROPERTY LISTED IN SCHEDULE B,
ATTACHED HERETO. /2/
3. PERIOD CLAUSE
THIS TRUST SHALL CONTINUE UNTIL TERMINATED UPON THE HAPPENING OF ONE
OF THE FOLLOWING CONDITIONS:
(A) WHEN (OWNER OR OPERATOR). . . PRESENTS TO THE TRUSTEE THE
ORIGINAL OR AN AUTHENTICATED COPY OF THE LETTER(S) SIGNED BY THE EPA
REGIONAL ADMINISTRATOR(S) STATING THAT HE IS NO LONGER REQUIRED TO
PROVIDE FINANCIAL ASSURANCE FOR CLOSURE OF THE ABOVE-NAMED
FACILITY(IES). IN SUCH AN EVENT, ALL REMAINING TRUST PROPERTY, LESS
FINAL TRUST ADMINISTRATION EXPENSES, SHALL BE DELIVERED TO (OWNER OR
OPERATOR) . . . .
(B) BY THE MUTUAL WRITTEN CONSENT OF THE GRANTOR OF THIS TRUST, THE
EPA REGIONAL ADMINISTRATOR(S) OF THE REGION(S) IN WHICH THE
FACILITY(IES) IS (ARE) LOCATED, THE TRUSTEE OF THIS TRUST AT ANY TIME.
4. OPERATION OF THE TRUST, DUTIES OF THE TRUSTEE
(NAME OF FINANCIAL INSTITUTION ACTING AS TRUSTEE). . . ACKNOWLEDGES
BELOW ITS RECEIPT OF THE TRUST PROPERTY LISTED IN SCHEDULE B AND ITS
ACCEPTANCE OF THE OBLIGATIONS AND DUTIES OF THE TRUSTEE AS DEFINED
BELOW.
(A) THE TRUSTEE AGREES TO NOTIFY THE EPA REGIONAL ADMINISTRATOR(S) BY
CERTIFIED MAIL WITHIN FIVE DAYS FOLLOWING THE EXPIRATION OF THE
THIRTY-DAY PERIOD AFTER THE ANNIVERSARY OF THE ESTABLISHMENT OF THE
TRUST, AS SPECIFIED IN SECTION 265.143(A)(5).
(B) THE TRUSTEE MAY RESIGN FROM ITS OBLIGATIONS AS TRUSTEE BY
SUBMITTING A WRITTEN NOTICE OF ITS INTENT TO THE GRANTOR AND TO THE EPA
REGIONAL ADMINISTRATOR(S).
(C) THE TRUSTEE IS TO MAKE PAYMENTS OUT OF THE TRUST ONLY UNDER THE
CONDITIONS SPECIFIED IN 40 CFR 265.143(A)(15). . . . . (DATE)
(SIGNATURE OF GRANTOR) . . . . (ADDRESS OF GRANTOR) . . . .
(AUTHORIZED SIGNATURE FOR TRUSTEE) . . . . (NAME OF TRUSTEE) . . . .
(ADDRESS OF TRUSTEE) . . . . (SIGNATURE OF NOTARY) . . . . MAIL
ORIGINAL TO THE EPA REGIONAL ADMINISTRATOR WITHIN 10 DAYS OF THE
EFFECTIVE DATE BY CERTIFIED MAIL. IF MORE THAN ONE FACILITY IS COVERED
AND THE FACILITIES ARE IN MORE THAN ONE REGION, SEND ORIGINAL TO
REGIONAL ADMINISTRATOR OF REGION IN WHICH THE LARGEST NUMBER OF
FACILITIES ARE LOCATED AND COPIES TO THE OTHER REGIONAL
ADMINISTRATOR(S), BY CERTIFIED MAIL.
EPA FORM 8700-16
AS PROVIDED FOR IN 40 CFR 265.143(B) UNDER AUTHORITY OF THE RESOURCE
CONSERVATION AND RECOVERY ACT OF 1976, AS AMENDED (42 USC 6901)
/3/ EPA FACILITY IDENTIFICATION NO. . . . . ADJUSTED CLOSURE COST
ESTIMATE, IN ACCORDANCE WITH 40 CFR 265.142: $ . . . .
KNOW ALL MEN BY THESE PRESENTS, THAT WE, (OWNER OF OPERATOR) . . . .
OF (ADDRESS) . . . ., AS PRINCIPAL AND (NAME OF SURETY COMPANY . . . .,
A COMPANY CREATED AND EXISTING UNDER THE LAWS OF (STATE) . . . ., AS
SURETY, ARE HELD AND FIRMLY BOUND UNTO THE U.S. ENVIRONMENTAL PROTECTION
AGENCY (EPA) IN THE PENAL SUM OF . . . . U.S. DOLLARS ($. . . .) FOR
PAYMENT OF WHICH, WELL AND TRULY TO BE MADE, WE BIND OURSELVES, OUR
HEIRS, EXECUTORS, ADMINISTRATORS, SUCCESSORS AND ASSIGNS, JOINTLY AND
SEVERALLY, AND FIRMLY BY THESE PRESENTS.
WHEREAS, THE PRINCIPAL INTENDS TO OBTAIN INTERIM STATUS, AS DEFINED
BY SECTION 3005 OF THE RESOURCE CONSERVATION AND RECOVERY ACT OF 1976,
AS AMENDED, FOR ONE OR MORE HAZARDOUS WASTE MANAGEMENT FACILITIES, AND
SUCH STATUS DEPENDS UPON COMPLIANCE WITH THE STANDARDS OF 40 CFR PART
265, WHICH INCLUDES THE REQUIREMENT, SPECIFIED IN SECTION 265.143, THAT
THE OWNER OR OPERATOR OF EACH SUCH FACILITY MUST ESTABLISH FINANCIAL
ASSURANCE THAT THE APPLICABLE CLOSURE REQUIREMENTS OF PART 265 WILL BE
MET, AND
WHEREAS, THIS BOND IS WRITTEN TO ASSURE COMPLIANCE WITH THE CLOSURE
REQUIREMENTS OF PART 265 FOR THE FOLLOWING HAZARDOUS WASTE MANAGEMENT
FACILITIES: (NAME AND ADDRESS OF FACILITY OR WRITE IN "SEE ATTACHED
SCHEDULE A" /1/ IF MORE THAN ONE FACILITY) . . . ., AND SHALL INURE TO
THE BENEFIT OF EPA IN ACCORDANCE WITH PART 265,
NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH THAT, IF THE
PRINCIPAL SHALL FAITHFULLY FULFILL THE CLOSURE REQUIREMENTS OF 40 CFR
PART 265 AT EACH OF THE FACILITIES GUARANTEED BY THIS BOND, PURSUANT TO
ALL APPLICABLE STATUTES, RULES AND REGULATIONS, AND SHALL CLOSE EACH
SUCH FACILITY IN ACCORDANCE WITH THE CLOSURE PLAN REQUIRED BY THE SAID
PART 265, THEN, AND ONLY THEN, THE ABOVE OBLIGATION SHALL BE VOID;
OTHERWISE TO BE AND TO REMAIN IN FULL FORCE AND EFFECT.
THE SURETY SHALL BECOME LIABLE ON THIS BOND OBLIGATION ONLY UPON
LEGAL DETERMINATION RENDERED IN A PROCEEDING BROUGHT PURSUANT TO SECTION
3008 OF THE RESOURCE CONSERVATION AND RECOVERY ACT, AS AMENDED, THAT THE
PRINCIPAL HAS VIOLATED THE CLOSURE REQUIREMENTS OF 40 CFR PART 265.
FOLLOWING SUCH A DETERMINATION, THE SURETY MUST EITHER COMPLETE CLOSURE
OF THE FACILITY IN ACCORDANCE WITH THE APPROVED CLOSURE PLAN FOR THE
FACILITY OR PAY THE AMOUNT OF THE PENAL SUM INTO AN ESCROW ACCOUNT AS
DIRECTED BY AN EPA REGIONAL ADMINISTRATOR.
THE LIABILITY OF THE SURETY SHALL NOT BE DISCHARGED BY ANY PAYMENT OR
SUCCESSION OF PAYMENTS HEREUNDER, UNLESS AND UNTIL SUCH PAYMENT OR
PAYMENTS SHALL AMOUNT IN THE AGGREGATE TO THE PENAL SUM OF THE BOND, BUT
IN NO EVENT SHALL THE SURETY'S OBLIGATION HEREUNDER EXCEED THE AMOUNT OF
SAID PENAL SUM. THE INSOLVENCY OR BANKRUPTCY OF THE PRINCIPAL SHALL NOT
CONSTITUTE A DEFENSE TO THE SURETY WITH REGARD TO CLAIMS OF LIABILITY ON
THE BOND OBLIGATIONS, AND IN THE EVENT OF SAID INSOLVENCY OR BANKRUPTCY,
THE SURETY MUST PAY ANY UNSATISFIED FINAL JUDGMENTS OBTAINED ON SUCH
CLAIMS. THE SURETY AGREES TO FURNISH WRITTEN NOTICE FORTHWITH TO THE
REGIONAL ADMINISTRATOR(S) OF THE EPA REGION(S) IN WHICH THE
FACILITY(IES) IS (ARE) LOCATED OF ALL SUITS FILED, JUDGMENTS RENDERED,
AND PAYMENTS MADE BY THE SURETY UNDER THIS BOND.
THIS BOND IS EFFECTIVE THE . . . . DAY OF . . . ., 19 . . ., AT THE
ADDRESS OF THE PRINCIPAL AS STATED HEREIN AND SHALL CONTINUE IN FORCE
UNTIL TERMINATED AS HEREINAFTER PROVIDED. THE SURETY MAY TERMINATE THIS
BOND BY WRITTEN NOTICE SENT BY CERTIFIED MAIL TO THE PRINCIPAL AND TO
THE EPA REGIONAL ADMINISTRATOR(S) OF THE REGION(S) IN WHICH THE
FACILITY(IES) IS (ARE) LOCATED, SUCH TERMINATION TO BECOME EFFECTIVE
NINETY (90) DAYS AFTER ACTUAL RECEIPT OF SAID NOTICE BY EPA: PROVIDED,
HOWEVER, NO SUCH TERMINATION SHALL BECOME EFFECTIVE WITH RESPECT TO ANY
FACILITY CLOSURE GUARANTEED BY THIS BOND IF CLOSURE OF SAID FACILITY HAS
BEGUN OR HAS BEEN ORDERED TO BEGIN BY AN EPA REGIONAL ADMINISTRATOR.
800519
FEDERAL REGISTER PART 8, VOLUME 45 NUMBER 98, PROPOSED RULE'S
EPA HAZARDOUS WASTE MANAGEMENT SYSTEM PROPOSED TO MODIFY 40 CFR PART
265, 264 SUBPART H, FINANCIAL REQUIREMENTS FOR OWNERS AND OPERATORS OF
HAZARDOUS WASTE MANAGEMENT FACILITIES, FRL 1459-7
PART 017 OF 20
COSTLE D M ADMINISTRATOR
EPA
113487
REGULATIONS
/1/ IF MORE THAN ONE FACILITY IS COVERED BY THIS LETTER OF CREDIT,
LIST ON A SEPARATE SHEET THE EPA FACILITY IDENTIFICATION NUMBERS, NAMES,
ADDRESSES, AND ADJUSTED CLOSURE AND/OR POST-CLOSURE COST ESTIMATES FOR
ALL THE FACILITIES, CLEARLY LABEL THIS LIST "SCHEDULE A," AND ATTACH IT
TO THIS LETTER OF CREDIT. SHOW TOTAL(S) OF COST ESTIMATES.
/2/ IF MORE THAN ONE FACILITY IS COVERED BY THIS GUARANTY, LIST ON A
SEPARATE SHEET THE EPA FACILITY IDENTIFICATION NUMBERS, NAMES,
ADDRESSES, AND THE ADJUSTED CLOSURE AND/OR POST-CLOSURE ESTIMATES FOR
ALL THE FACILITIES, CLEARLY LABEL THIS LIST "SCHEDULE A," AND ATTACH IT
TO THIS GUARANTY. SHOW TOTAL(S) OF COST ESTIMATES.
THE PRINCIPAL MAY TERMINATE THIS BOND BY SENDING WRITTEN NOTICE TO
THE SURETY, SUCH TERMINATION TO BECOME EFFECTIVE THIRTY (30) DAYS AFTER
RECEIPT OF SUCH NOTICE BY THE SURETY; PROVIDED, HOWEVER, THAT SUCH
NOTICE IS ACCOMPANIED BY WRITTEN AUTHORIZATION FOR TERMINATION OF THE
BOND BY THE REGIONAL ADMINISTRATOR(S) OF THE EPA REGION(S) IN WHICH THE
BONDED FACILITY(IES) IS (ARE) LOCATED.
IF MORE THAN ONE SURETY COMPANY JOINS IN EXECUTING THIS BOND, SUCH
ACTION SHALL CONSTITUTE JOINT AND SEVERAL LIABILITY ON THE PART OF THE
SURETIES.
IN WITNESS WHEREOF, THE PRINCIPAL AND SURETY HAVE EXECUTED THIS
INSTRUMENT ON THE . . . . DAY OF . . . ., 19 . . .
(SEAL) . . . .
(SURETY)
(SEAL) . . . .
(PRINCIPAL)
(SEAL) . . . .
(ATTORNEY-IN-FACT) (ADDRESS OF
PRINCIPAL) . . . .
SURETY BOND NO. . . . .
MAIL ORIGINAL TO THE EPA REGIONAL ADMINISTRATOR WITHIN 10 DAYS OF THE
EFFECTIVE DATE BY CERTIFIED MAIL. IF MORE THAN ONE FACILITY IS COVERED
AND THE FACILITIES ARE IN MORE THAN ONE REGION, SEND ORIGINAL TO
REGIONAL ADMINISTRATOR OF REGION IN WHICH THE LARGEST NUMBER OF
FACILITIES ARE LOCATED AND COPIES TO THE OTHER REGIONAL
ADMINISTRATOR(S), BY CERTIFIED MAIL.
EPA FORM 8700-17
AS PROVIDED FOR IN 40 CFR 265.143(C), 265.145(C), AND 265.145 (E)
UNDER AUTHORITY OF THE RESOURCE CONSERVATION AND RECOVERY ACT OF 1976,
AS AMENDED (42 USC 6901)
/1/ EPA FACILITY IDENTIFICATION NO. . . . . ADJUSTED COST ESTIMATE(S)
FOR THE FACILITY, FOR CLOSURE AND/OR POST-CLOSURE CARE TO BE COVERED BY
THIS LETTER OF CREDIT, IN ACCORDANCE WITH 40 CFR 265.142 AND 265.144: $
. . . . (CLOSURE) $ . . . . (POST-CLOSURE) ADMINISTRATOR(S) FOR
REGION(S) . . . . U.S. ENVIRONMENTAL PROTECTION AGENCY ADDRESS(ES) . . .
. (ADDRESS TO EPA REGIONAL ADMINISTRATOR(S) OF REGION(S) IN WHICH THE
FACILITY(IES) IS (ARE) LOCATED.)
DEAR SIR OR MADAM: WE HEREBY ESTABLISH OUR IRREVOCABLE STANDBY
LETTER OF CREDIT NO. . . . ., IN FAVOR OF THE REGIONAL ADMINISTRATOR(S)
FOR REGION(S) . . . . OF THE U.S. ENVIRONMENTAL PROTECTION AGENCY FOR
THE ACCOUNT OF (OWNER OR OPERATOR) . . . . UP TO THE AGGREGATE AMOUNT OF
. . . . U.S. DOLLARS ($. . .) AVAILABLE BY YOUR DRAFTS AS SPECIFIED
BELOW.
THIS LETTER OF CREDIT IS EFFECTIVE AS OF TODAY'S DATE AND WILL EXPIRE
ON THE . . . . DAY OF . . . . 19 . . ., SUBJECT TO THE OPERATION OF THE
RENEWAL CLAUSE BELOW.
THE PURPOSE OF THIS LETTER OF CREDIT IS TO PROVIDE FINANCIAL
ASSURANCE TO THE U.S. ENVIRONMENTAL PROTECTION AGENCY OF COMPLIANCE WITH
THE ("CLOSURE," "POST-CLOSURE," OR "CLOSURE AND POST-CLOSURE") . . . .
REQUIREMENTS OF 40 CFR PART 265 AS THEY APPLY TO (NAME AND ADDRESS OF
FACILITY, OR WRITE IN "SEE ATTACHED SCHEDULE A" /1/ IF MORE THAN ONE
FACILITY . . . . SUCH ASSURANCE IS REQUIRED FOR CLOSURE BY 40 CFR
265.143 AND FOR POST-CLOSURE CARE BY 40 CFR 265.145. THIS LETTER OF
CREDIT PROVIDES ASSURANCE FOR (CHECK THOSE THAT APPLY):
. . . . CLOSURE IN ACCORDANCE WITH THE LETTER-OF-CREDIT
SPECIFICATIONS OF 40 CFR 265.143(C)
. . . . A LUMP-SUM PAYMENT AT CLOSURE FOR THE PURPOSE OF ASSURING
POST-CLOSURE CARE IN ACCORDANCE WITH LETTER-OF-CREDIT SPECIFICATIONS OF
40 CFR 265.145(C)
. . . . FUNDS FOR THE PERFORMANCE OF POST-CLOSURE CARE IN ACCORDANCE
WITH LETTER-OF-CREDIT SPECIFICATIONS OF 40 CFR 265.145(E)
ALL DRAFTS ON THIS LETTER OF CREDIT SUBMITTED IN WRITING AND
ACCOMPANIED BY YOUR SIGNATURE WILL BE PROMPTLY PAID AND DEPOSITED IN AN
INTEREST-BEARING ESCROW ACCOUNT IN THIS BANK. IF A DRAFT ON THE ESCROW
ACCOUNT IS ACCOMPANIED BY A COPY OF AN ORDER FROM A FEDERAL
ADMINISTRATIVE LAW JUDGE OR A FEDERAL DISTRICT COURT JUDGE SETTING FORTH
A DETERMINATION OF A VIOLATION OF THE ABOVE-MENTIONED CLOSURE AND/OR
POST-CLOSURE REQUIREMENTS, WE WILL PAY THE PARTY OR PARTIES DESIGNATED
BY THE COURT OR THE EPA REGIONAL ADMINISTRATOR(S).
ALTERNATIVELY, PAYMENTS MAY BE MADE OUT OF ANY AMOUNT IN ESCROW
FOLLOWING A DRAFT UPON THIS LETTER OF CREDIT BY THE MUTUAL WRITTEN
CONSENT OF (OWNER OR OPERATOR) . . . . AND THE EPA REGIONAL
ADMINISTRATOR(S), PURSUANT TO 40 CFR 265.143(C)(6), 265.145(C)(6) AND
(8), OR 265.145(E)(7), AS APPLICABLE.
IT IS A CONDITION OF THIS LETTER OF CREDIT THAT IT WILL BE
AUTOMATICALLY EXTENDED FOR ONE-YEAR PERIODS FROM THE EXPIRATION DATE SET
FORTH ABOVE, UNLESS SIXTY (60) DAYS BEFORE THAT DATE WE NOTIFY YOU BY
CERTIFIED MAIL OF OUR INTENT NOT TO RENEW THE CREDIT. IN THAT CASE, FOR
THE REMAINDER OF THE PERIOD OF THE LETTER OF CREDIT, YOU MAY DRAW UPON
THE CREDIT UP TO THE AGGREGATE AMOUNT OF THE CREDIT REMAINING, SUCH
DRAFT TO BE DEPOSITED IN ESCROW AS DESCRIBED ABOVE. THIS LETTER OF
CREDIT MAY BE TERMINATED BY (OWNER OR OPERATOR) . . . . BY SENDING
WRITTEN NOTICE TO THIS BANK, SUCH TERMINATION TO BECOME EFFECTIVE THIRTY
(30) DAYS AFTER RECEIPT OF SUCH NOTICE BY THIS BANK; PROVIDED, HOWEVER,
THAT SUCH NOTICE IS ACCOMPANIED BY YOUR WRITTEN AUTHORIZATION FOR
TERMINATION OF THE LETTER OF CREDIT.
THIS LETTER OF CREDIT IS SUBJECT TO ARTICLE FIVE OF THE UNIFORM
COMMERCIAL CODE AND THE "UNIFORM CUSTOMS AND PRACTICES FOR DOCUMENTARY
CREDITS" (1974 REVISION) DESCRIBED IN INTERNATIONAL CHAMBER OF COMMERCE
BROCHURE NO. 290.
ALL COMMUNICATIONS CONCERNING THIS LETTER OF CREDIT ARE TO BE
ADDRESSED TO: (NAME AND ADDRESS OF RESPONSIBLE OFFICER OF THE ISSUING
BANK) . . . . . . . . (DATE) (AUTHORIZED SIGNATURE) (PRINT OR TYPE
NAME OF PERSON SIGNING) . . . . (TITLE OF PERSON SIGNING) . . . .
(NAME OF BANK) . . . . MAIL TO THE EPA REGIONAL ADMINISTRATOR(S) WITHIN
10 DAYS OF THE EFFECTIVE DATE BY CERTIFIED MAIL.
EPA FORM 8700-18
AS PROVIDED FOR IN 40 CFR 265.143(E) AND 265.145(G), UNDER AUTHORITY
OF THE RESOURCE CONSERVATION AND RECOVERY ACT OF 1976, AS AMENDED (42
USC 6901)
/1/ EPA FACILITY IDENTIFICATION NO. . . . . ADJUSTED COST
ESTIMATES(S) FOR THE FACILITY, FOR CLOSURE AND/OR POST-CLOSURE CARE TO
BE COVERED BY THIS GUARANTY, IN ACCORDANCE WITH 40 CFR 265.142 AND
265.144: $ . . . . (CLOSURE $ . . . . (POST-CLOSURE)
GUARANTY MADE THIS . . . . DAY OF . . . ., 19 . . ., BY (NAME OF
GUARANTEEING ENTITY) . . . ., A BUSINESS ENTITY ORGANIZED UNDER THE
LAWS OF THE STATE OF . . . ., WITH ITS PRINCIPAL OFFICE AT . . . .,
HERIN REFERRED TO AS GUARANTOR, TO THE U.S. ENVIRONMENTAL PROTECTION
AGENCY (EPA) AS OBLIGEE ON BEHALF OF (OWNER OR OPERATOR) . . . . OF
(BUSINESS ADDRESS) . . . .
1. GUARANTOR MEETS OR EXCEEDS THE FINANCIAL TEST REQUIREMENTS OF 40
CFR 265.143(E) AND/OR 265.145(G). GUARANTOR AGREES TO NOTIFY THE EPA
REGIONAL ADMINISTRATOR(S) FOR THE REGION(S) IN WHICH THE FACILITY(IES)
LISTED BELOW IS (ARE) LOCATED AND (OWNER OR OPERATOR) . . . . WITHIN
FIVE DAYS AFTER THE GUARANTOR LEARNS OF ITS FAILURE TO MEET ANY OF THE
TEST REQUIREMENTS AT ANY TIME DURING THE LIFE OF THIS GUARANTY.
2. (OWNER OR OPERATOR) . . . . OPERATES OR OWNS A HAZARDOUS WASTE
FACILITY AT (ADDRESS OF FACILITY, OR WRITE IN "SEE ATTACHED SCHEDULE A"
/2/ IF MORE THAN ONE FACILITY IS COVERED) . . . .
FOR VALUE RECEIVED FROM (OWNER OR OPERATOR) . . . ., THE GUARANTOR
GUARANTEES TO THE U.S. ENVIRONMENTAL PROTECTION AGENCY (EPA) THAT IN THE
EVENT THAT (OWNER OR OPERATOR) . . . ., FAILS TO COMPLY WITH THE
("CLOSURE," "POST-CLOSURE," OR "CLOSURE AND POST-CLOSURE") . . . .
REQUIREMENTS OF 40 CFR PART 265 APPLICABLE TO (NAME AND ADDRESS OF
FACILITY OR WRITE IN "SEE ATTACHED SCHEDULE A") . . . ., THE GUARANTOR
AGREES TO PAY THE PERSONS(S) DESIGNATED BY EPA OR TO PAY EPA ITSELF,
FOLLOWING A LEGAL DETERMINATION OF A VIOLATION OF THE REGULATIONS, AN
AMOUNT SUFFICIENT TO BRING THE ABOVE-MENTIONED FACILITY(IES) INTO
COMPLIANCE WITH THE APPLICABLE REGULATIONS, BUT NOT TO EXCEED THE
ADJUSTED COST ESTIMATE(S) AS PREPARED IN ACCORDANCE WITH 40 CFR 265.142
AND 265.144.
800519
FEDERAL REGISTER PART 8, VOLUME 45 NUMBER 98, PROPOSED RULE'S
EPA HAZARDOUS WASTE MANAGEMENT SYSTEM PROPOSED TO MODIFY 40 CFR PART
265, 264 SUBPART H, FINANCIAL REQUIREMENTS FOR OWNERS AND OPERATORS OF
HAZARDOUS WASTE MANAGEMENT FACILITIES, FRL 1459-7
PART 018 OF 20
COSTLE D M ADMINISTRATOR
EPA
113488
REGULATIONS
/1/ IF POST-CLOSURE CARE OF MORE THAN ONE FACILITY IS COVERED BY THE
TRUST, LIST ON A SEPARATE SHEET THE EPA FACILITY IDENTIFICATION NUMBERS,
NAMES, AND ADDRESSES, AND ADJUSTED POST-CLOSURE COST ESTIMATES FOR THE
FACILITIES, CLEARLY LABEL THIS LIST "SCHEDULE A," AND ATTACH IT TO THIS
AGREEMENT. SHOW TOTAL OF COST ESTIMATES.
/2/ LIST PROPERTY INCLUDED IN INITIAL TRANSFER ON SEPARATE SHEET,
CLEARLY LABEL THIS LIST "SCHEDULE B," AND ATTACH IT TO THIS AGREEMENT.
/3/ IF PROVISION FOR POST-CLOSURE CARE OF MORE THAN ONE FACILITY IS
COVERED BY THE BOND, LIST ON A SEPARATE SHEET THE EPA FACILITY
IDENTIFICATION NUMBERS, NAMES, ADDRESSES, AND ADJUSTED POST-CLOSURE COST
ESTIMATES FOR ALL THE FACILITIES, CLEARLY LABLE THIS LIST "SCHEDULE A,"
AND ATTACH IT TO THIS BOND. SHOW TOTAL OF COST ESTIMATES.
THIS GUARANTY IS GOOD FOR SO LONG AS (OWNER OR OPERATOR) . . . .
MUST COMPLY WITH THE APPLICABLE FINANCIAL ASSURANCE REQUIREMENTS OF 40
CFR 265.143 AND 265.145 FOR THE ABOVE-MENTIONED FACILITY(IES).
THE GUARANTOR MAY TERMINATE THIS GUARANTY BY SENDING NOTICE BY
CERTIFIED MAIL TO THE EPA ADMINISTRATOR(S) FOR THE REGION(S) IN WHICH
THE FACILITY(IES) IS (ARE) LOCATED AND TO (OWNER OR OPERATOR) . . . .,
SUCH TERMINATION TO BECOME EFFECTIVE NINETY (90) DAYS AFTER ACTUAL
RECEIPT OF THE NOTICE BY EPA; PROVIDED, HOWEVER, THAT NO SUCH
TERMINATION SHALL BECOME EFFECTIVE IF CLOSURE BEGINS OR IS ORDERED TO
BEGIN BY AN EPA REGIONAL ADMINISTRATOR BEFORE THE END OF THE 90 DAYS.
FURTHERMORE, IF COMPLIANCE WITH POST-CLOSURE REQUIREMENTS IS GUARANTEED,
NO SUCH TERMINATION MAY BECOME EFFECTIVE IF CLOSURE HAS TAKEN PLACE.
THIS GUARANTY MAY BE TERMINATED AT ANY TIME SUBJECT TO THE MUTUAL,
PRIOR WRITTEN CONSENT OF THE GUARANTOR, THE EPA REGIONAL
ADMINISTRATOR(S) OF THE REGION(S) IN WHICH THE FACILITY(IES) IS (ARE)
LOCATED, AND (OWNER OR OPERATOR) . . . . . . . . (EFFECTIVE DATE) . .
. . (NAME OF GUARANTOR) . . . . (AUTHORIZED SIGNATURE FOR GUARANTOR) .
. . . (PRINT OR TYPE NAME OF PERSON SIGNING) . . . . (TITLE OF PERSON
SIGNING) . . . . (SIGNATURE OF WITNESS OR NOTARY) . . . . MAIL
ORIGINAL TO THE EPA REGIONAL ADMINISTRATOR WITHIN 10 DAYS OF THE
EFFECTIVE DATE BY CERTIFIED MAIL. IF MORE THAN ONE FACILITY IS COVERED
AND THE FACILITIES ARE IN MORE THAN ONE REGION, SEND ORIGINAL TO
REGIONAL ADMINISTRATOR OF REGION IN WHICH THE LARGEST NUMBER OF
FACILITIES ARE LOCATED AND COPIES TO THE OTHER REGIONAL
ADMINISTRATOR(S), BY CERTIFIED MAIL.
EPA FORM 8700-19
AS PROVIDED FOR IN 40 CFR 265.145(A), UNDER AUTHORITY OF THE RESOURCE
CONSERVATION AND RECOVERY ACT OF 1976, AS AMENDED (42 USC 6901)
/1/ EPA FACILITY IDENTIFICATION NO. . . . . ADJUSTED POST-CLOSURE
COST ESTIMATE, IN ACCORDANCE WITH 40 CF4 265.144: $ . . . .
ON THIS . . . . DAY OF . . . ., 19 . . ., I (OWNER OR OPERATOR) . . .
., AM PLACING PROPERTY DESCRIBED BELOW IN TRUST FOR THE U.S.
ENVIRONMENTAL PROTECTION AGENCY (EPA) TO BE HELD BY (NAME OF FINANCIAL
INSTITUTION) . . . . AS TRUSTEE UNDER THE TERMS SET FORTH BELOW. THE
TRUST SHALL BE NAMED THE "POST-CLOSURE TRUST" FOR THE FOLLOWING
HAZARDOUS WASTE MANAGEMENT FACILITY(IES): . . . . (NAME AND ADDRESS OF
FACILITY, OR WRITE IN "SEE ATTACHED SCHEDULE A" /1/ IF MORE THAN ONE
FACILITY).
1. PURPOSE CLAUSE
PURSUANT TO THE FINANCIAL ASSURANCE REQUIREMENTS OF 40 CFR 265.145,
THE PURPOSE OF THIS TRUST IS TO PAY FOR THE COSTS OF POST-CLOSURE CARE
OF THE ABOVE-NAMED FACILITY(IES) IN ACCORDANCE WITH THE POST-CLOSURE
REQUIREMENTS OF 40 CFR PART 265.
2. PROPERTY CLAUSE
IT IS AGREED TO BY (OWNER OR OPERATOR) . . . . AS GRANTOR OF THIS
TRUST THAT THE TRUST WILL BE FUNDED IN ACCORDANCE WITH THE REQUIREMENS
OF SECTION 265.145(A) OF THE REGULATIONS. THE INITIAL TRANSFER OF
PROPERTY TO THE TRUST SHALL CONSIST OF THE PROPERTY LISTED IN SCHEDULE
B, ATTACHED HERETO. /2/
3. PERIOD CLAUSE
THIS TRUST SHALL CONTINUE UNTIL TERMINATED UPON THE HAPPENING OF ONE
OF THE FOLLOWING CONDITIONS:
(A) UPON WRITTEN NOTICE(S) FROM THE EPA REGIONAL ADMINISTRATOR(S)
THAT (OWNER OR OPERATOR) . . . . IS NO LONGER REQUIRED TO MAINTAIN
FINANCIAL ASSURANCE FOR POST-CLOSURE CARE OF THE ABOVE-NAMED
FACILITY(IES). IN SUCH AN EVENT, ALL REMAINING TRUST PROPERTY, LESS
FINAL TRUST ADMINISTRATION EXPENSES, SHALL BE DELIVERED TO (OWNER OR
OPERATOR) . . . .
(B) BY THE MUTUAL WRITTEN CONSENT OF THE GRANTOR OF THIS TRUST, THE
EPA REGIONAL ADMINISTRATOR(S) OF THE REGION(S) IN WHICH THE
FACILITY(IES) IS (ARE) LOCATED, THE TRUSTEE OF THIS TRUST AT ANY TIME.
4. OPERATION OF THE TRUST, DUTIES OF THE TRUSTEE
(NAME OF FINANCIAL INSTITUTION ACTING AS TRUSTEE) . . . .
ACKNOWLEDGES BELOW ITS RECEIPT OF THE TRUST PROPERTY LISTED IN SCHEDULE
B AND ITS ACCEPTANCE OF THE OBLIGATIONS AND DUTIES OF THE TRUSTEE AS
DEFINED BELOW.
(A) THE TRUSTEE AGREES TO NOTIFY THE EPA REGIONAL ADMINISTRATOR(S) BY
CERTIFIED MAIL WITHIN FIVE DAYS FOLLOWING THE EXPIRATION OF THE
THIRTY-DAY PERIOD AFTER THE ANNIVERSARY OF THE ESTABLISHMENT OF THE
TRUST, AS SPECIFIED IN SECTION 265.145(A)(5).
(B) THE TRUSTEE MAY RESIGN FROM ITS OBLIGATIONS AS TRUSTEE BY
SUBMITTING WRITTEN NOTICE OF ITS INTENT TO THE GRANTOR AND TO THE EPA
REGIONAL ADMINISTRATOR(S).
(C) THE TRUSTEE IS TO MAKE PAYMENTS OUT OF THE TRUST ONLY UNDER THE
CONDITIONS SPECIFIED IN 40 CFR 265.145(A)(16). . . . . (DATE)
(SIGNATURE OF GRANTOR) (ADDRESS OF GRANTOR) . . . . (AUTHORIZED
SIGNATURE FOR TRUSTEE) . . . . (NAME OF TRUSTEE) . . . . (ADDRESS OF
TRUSTEE) . . . . (SIGNATURE OF NOTARY) . . . . MAIL ORIGINAL TO THE
EPA REGIONAL ADMINISTRATOR WITHIN 10 DAYS OF THE EFFECTIVE DATE BY
CERTIFIED MAIL. IF MORE THAN ONE FACILITY IS COVERED AND THE FACILITIES
ARE IN MORE THAN ONE REGION, SEND ORIGINAL TO REGIONAL ADMINISTRATOR OF
REGION IN WHICH THE LARGEST NUMBER OF FACILITIES ARE LOCATED AND COPIES
TO THE OTHER REGIONAL ADMINISTRATOR(S), BY CERTIFIED MAIL.
EPA FORM 8700-20
AS PROVIDED FOR IN 40 CFR 265.145(B) UNDER AUTHORITY OF THE RESOURCE
CONSERVATION AND RECOVERY ACT OF 1976, AS AMENDED (42 USC 6901)
/1/ EPA FACILITY IDENTIFICATION NO. . . . . ADJUSTED POST-CLOSURE
COST ESTIMATE, IN ACCORDANCE WITH 40 CFR 265.144: $ . . . .
KNOW ALL MEN BY THESE PRESENTS, THAT WE, (OWNER OF OPERATOR) . . . .
OF (ADDRESS) . . . ., AS PRINCIPAL AND (NAME OF SURETY COMPANY) . . . .,
A COMPANY CREATED AND EXISTING UNDER THE LAWS OF (STATE) . . . ., AS
SURETY, ARE HELD AND FIRMLY BOUND UNTO THE U.S. ENVIRONMENTAL PROTECTION
AGENCY (EPA) IN THE PENAL SUM OF . . . . U.S. DOLLARS ($ . . .) FOR
PAYMENT OF WHICH, WELL AND TRULY TO BE MADE, WE BIND OURSELVES, OUR
HEIRS, EXECUTORS, ADMINISTRATORS, SUCCESSORS AND ASSIGNS, JOINTLY AND
SEVERALLY, AND FIRMLY BY THESE PRESENTS.
WHEREAS, THE PRINCIPAL INTENDS TO OBTAIN INTERIM STATUS, AS DEFINED
BY SECTION 3005 OF THE RESOURCE CONSERVATION AND RECOVERY ACT OF 1976,
AS AMENDED, FOR ONE OR MORE HAZARDOUS WASTE DISPOSAL FACILITIES, AND
SUCH STATUS DEPENDS UPON COMPLIANCE WITH THE STANDARDS OF 40 CFR PART
265, WHICH INCLUDES THE REQUIREMENT, SPECIFIED IN SECTION 265.145, THAT
THE OWNER OR OPERATOR OF EACH SUCH FACILITY MUST ESTABLISH FINANCIAL
ASSURANCE THAT THE APPLICABLE REQUIREMENTS OF PART 265 FOR POST-CLOSURE
CARE WILL BE MET, AND
WHEREAS, THIS BOND IS WRITTEN TO ASSURE THAT THE PRINCIPAL WILL
ESTABLISH A TRUST FUND IN ACCORDANCE WITH SECTION 265.145 FOR THE
PURPOSE OF PROVIDING FOR POST-CLOSURE CARE OF THE FOLLOWING HAZARDOUS
WASTE DISPOSAL FACILITIES: (NAME AND ADDRESS OF FACILITY OR WRITE IN
"SEE ATTACHED SCHEDULE A" /3/ IF MORE THAN ONE FACILITY) . . . ., AND
SHALL INURE TO THE BENEFIT OF EPA IN ACCORDANCE WITH SAID PART 265.
NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH THAT, IF THE
PRINCIPAL SHALL FAITHFULLY, FOR EACH OF THE FACILITIES GUARANTEED BY
THIS BOND, WITHIN 30 DAYS AFTER BEGINNING CLOSURE, MAKE FULL PAYMENT IN
THE AMOUNT OF THE FINAL ADJUSTED POST-CLOSURE COST ESTIMATE CALCULATED
IN ACCORDANCE WITH SECTION 265.144 INTO A TRUST FUND MEETING THE
REQUIREMENTS OF SECTION 265.145(A) TO ASSURE THE COSTS OF 30 YEARS OF
POST-CLOSURE CARE, PURSUANT TO ALL APPLICABLE STATUTES, RULES AND
REGULATIONS, THEN AND ONLY THEN, THE ABOVE OBLIGATION SHALL BE VOID;
OTHERWISE TO BE AND TO REMAIN IN FULL FORCE AND EFFECT.
THE SURETY SHALL BECOME LIABLE ON THIS BOND OBLIGATION ONLY WHEN THE
PRINCIPAL FAILS TO MAKE PAYMENT IN ACCORDANCE WITH SECTION
265.145(B)(3).
800519
FEDERAL REGISTER PART 8, VOLUME 45 NUMBER 98, PROPOSED RULE'S
EPA HAZARDOUS WASTE MANAGEMENT SYSTEM PROPOSED TO MODIFY 40 CFR PART
265, 264 SUBPART H, FINANCIAL REQUIREMENTS FOR OWNERS AND OPERATORS OF
HAZARDOUS WASTE MANAGEMENT FACILITIES, FRL 1459-7
PART 019 OF 20
COSTLE D M ADMINISTRATOR
EPA
113489
REGULATIONS
/1/ IF POST-CLOSURE CARE OF MORE THAN ONE FACILITY IS COVERED BY THE
BOND, LIST ON A SEPARATE SHEET THE EPA FACILITY IDENTIFICATION NUMBERS,
NAMES, AND ADDRESSES, AND ADJUSTED POST-CLOSURE COST ESTIMATES FOR ALL
THE FACILITIES, CLEARLY LABEL THIS LIST "SCHEDULE A," AND ATTACH IT TO
THIS BOND. SHOW TOTAL OF COST ESTIMATES.
UPON NOTIFICATION BY AN EPA REGIONAL ADMINISTRATOR THAT THE PRINCIPAL
HAS FAILED TO FULFILL THE PAYMENT OBLIGATION, THE SURETY WILL PLACE
FUNDS IN THE AMOUNT OF THE PAYMENT OBLIGATION INTO A TRUST FUND AS
DIRECTED BY AN EPA REGIONAL ADMINISTRATOR.
THE LIABILITY OF THE SURETY SHALL NOT BE DISCHARGED BY ANY PAYMENT OR
SUCCESSION OF PAYMENTS HEREUNDER, UNLESS AND UNTIL SUCH PAYMENT OR
PAYMENTS SHALL AMOUNT IN THE AGGREGATE TO THE PENAL SUM OF THE BOND, BUT
IN NO EVENT SHALL THE SURETY'S OBLIGATION HEREUNDER EXCEED THE AMOUNT OF
SAID PENAL SUM. THE INSOLVENCY OR BANKRUPTCY OF THE PRINCIPAL SHALL NOT
CONSTITUTE A DEFENSE TO THE SURETY WITH REGARD TO CLAIMS OF LIABILITY ON
THE BOND OBLIGATIONS, AND IN THE EVENT OF SAID INSOLVENCY OR BANKRUPTCY,
THE SURETY MUST PAY ANY UNSATISFIED FINAL JUDGMENTS OBTAINED ON SUCH
CLAIMS. THE SURETY AGREES TO FURNISH WRITTEN NOTICE FORTHWITH TO THE
REGIONAL ADMINISTRATOR(S) OF THE EPA REGION(S) IN WHICH THE
FACILITY(IES) IS (ARE) LOCATED OF ALL SUITS FILED, JUDGMENTS RENDERED,
AND PAYMENTS MADE BY THE SURETY UNDER THIS BOND.
THIS BOND IS EFFECTIVE THE . . . . DAY OF . . . ., 19 . . . ., AT THE
ADDRESS OF THE PRINCIPAL AS STATED HEREIN AND SHALL CONTINUE IN FORCE
FOR EACH FACILITY GUARANTEED BY THIS BOND UNTIL NINETY (90) DAYS
FOLLOWING THE BEGINNING OF CLOSURE OF THAT FACILITY OR UNTIL RECEIPT OF
WRITTEN NOTICE SENT BY EPA TO THE SURETY OF SATISFACTORY COMPLETION OF
THE FINANCIAL ASSURANCE OBLIGATION OF THE PRINCIPAL WITH REGARD TO
POST-CLOSURE CARE OF THAT FACILITY, THE SOONER, OR UNTIL OTHERWISE
TERMINATED AS HEREINAFTER PROVIDED. THE SURETY MAY TERMINATE THIS BOND
BY WRITTEN NOTICE SENT BY CERTIFIED MAIL TO THE PRINCIPAL AND TO THE EPA
REGIONAL ADMINISTRATOR(S) FOR THE REGION(S) IN WHICH THE FACILITY(IES)
IS (ARE) LOCATED, SUCH TERMINATION TO BECOME EFFECTIVE NINETY (90) DAYS
AFTER ACTUAL RECEIPT OF SAID NOTICE BY EPA; PROVIDED, HOWEVER, THAT NO
SUCH TERMINATION SHALL BECOME EFFECTIVE IF CLOSURE OF SAID FACILITY HAS
BEGUN, OR HAS BEEN ORDERED TO BEGIN BY AN EPA REGIONAL ADMINISTRATOR.
THE PRINCIPAL MAY TERMINATE THIS BOND BY SENDING WRITTEN NOTICE TO THE
SURETY, SUCH TERMINATION TO BECOME EFFECTIVE THIRTY (30) DAYS AFTER
RECEIPT OF SUCH NOTICE BY THE SURETY; PROVIDED, HOWEVER, THAT SUCH
NOTICE IS ACCOMPANIED BY WRITTEN AUTHORIZATION FOR TERMINATION OF THE
BOND BY THE REGIONAL ADMINISTRATOR(S) OF THE EPA REGION(S) IN WHICH THE
BONDED FACILITY(IES) IS (ARE) LOCATED.
IF MORE THAN ONE SURETY COMPANY JOINS IN EXECUTING THIS BOND, SUCH
ACTION SHALL CONSTITUTE JOINT AND SEVERAL LIABILITY ON THE PART OF THE
SURETIES.
IN WITNESS WHEREOF, THE PRINCIPAL AND SURETY HAVE EXECUTED THIS
INSTRUMENT ON THE . . . . DAY OF . . . ., 19 . . .
(SEAL) . . . .
(SURETY)
(SEAL) . . . .
(PRINCIPAL)
(SEAL) . . . .
(ATTORNEY-IN-FACT) (ADDRESS OF
PRINCIPAL) . . . .
SURETY BOND NO. . . . .
MAIL ORIGINAL TO THE EPA REGIONAL ADMINISTRATOR WITHIN 10 DAYS OF THE
EFFECTIVE DATE BY CERTIFIED MAIL. IF MORE THAN ONE FACILITY IS COVERED
AND THE FACILITIES ARE IN MORE THAN ONE REGION, SEND ORIGINAL TO
REGIONAL ADMINISTRATOR OF REGION IN WHICH THE LARGEST NUMBER OF
FACILITIES ARE LOCATED AND COPIES TO THE OTHER REGIONAL
ADMINISTRATOR(S), BY CERTIFIED MAIL.
EPA FORM 8700-21
AS PROVIDED FOR IN 40 CFR 265.145(D), UNDER AUTHORITY OF THE RESOURCE
CONSERVATION AND RECOVERY ACT OF 1976, AS AMENDED (42 USC 6901) /1/ EPA
FACILITY IDENTIFICATION NO. . . . . ADJUSTED POST-CLOSURE COST ESTIMATE,
IN ACCORDANCE WITH 40 CFR 265.144: $ . . . .
KNOW ALL MEN BY THESE PRESENTS, THAT WE, (OWNER OR OPERATOR) . . . .
OF (ADDRESS) . . . ., AS PRINCIPAL AND (NAME OF SURETY COMPANY) . . . .,
A COMPANY CREATED AND EXISTING UNDER THE LAWS OF (STATE) . . . ., AS
SURETY, ARE HELD AND FIRMLY BOUND UNTO THE U.S. ENVIRONMENTAL PROTECTION
AGENCY (EPA) IN THE PENAL SUM OF . . . . U.S. DOLLARS ($. . . .) FOR
PAYMENT OF WHICH, WELL AND TRULY TO BE MADE, WE BIND OURSELVES, OUR
HEIRS, EXECUTORS, ADMINISTRATORS, SUCCESSORS AND ASSIGNS, JOINTLY AND
SEVERALLY, AND FIRMLY BY THESE PRESENTS.
WHEREAS, THE PRINCIPAL INTENDS TO OBTAIN INTERIM STATUS, AS DEFINED
BY SECTION 3005 OF THE RESOURCE CONSERVATION AND RECOVERY ACT OF 1976,
AS AMENDED, FOR ONE OR MORE HAZARDOUS WASTE DISPOSAL FACILITIES, AND
SUCH STATUS DEPENDS UPON COMPLIANCE WITH THE STANDARDS OF 40 CFR PART
265, WHICH INCLUDES THE REQUIREMENT, SPECIFIED IN SECTION 265.145, THAT
THE OWNER OR OPERATOR OF EACH SUCH FACILITY MUST ESTABLISH FINANCIAL
ASSURANCE THAT THE APPLICABLE REQUIREMENTS OF PART 265 FOR POST-CLOSURE
CARE WILL BE MET, AND
WHEREAS, THIS BOND IS WRITTEN TO ASSURE COMPLIANCE WITH THE
POST-CLOSURE REQUIREMENTS OF 40 CFR PART 265 FOR THE FOLLOWING HAZARDOUS
WASTE DISPOSAL FACILITIES: (NAME AND ADDRESS OF FACILITY OR WRITE IN
"SEE ATTACHED SCHEDULE A" /1/ IF MORE THAN ONE FACILITY) . . . ., AND
SHALL INURE TO THE BENEFIT OF EPA IN ACCORDANCE WITH SAID PART 265.
NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH THAT, IF THE
PRINCIPAL SHALL FAITHFULLY FULFILL THE APPLICABLE POST-CLOSURE
REQUIREMENTS SET FORTH IN 40 CFR PART 265 FOR EACH OF THE FACILITIES
GUARANTEED BY THIS BOND, PURSUANT TO ALL APPLICABLE STATUTES, RULES AND
REGULATIONS, AND SHALL CARRY OUT THE POST-CLOSURE PLAN REQUIRED BY PART
265, THEN, AND ONLY THEN, THE ABOVE OBLIGATION SHALL BE VOID; OTHERWISE
TO BE AND TO REMAIN IN FULL FORCE AND EFFECT.
THE SURETY SHALL BECOME LIABLE ON THIS BOND OBLIGATION ONLY UPON A
LEGAL DETERMINATION RENDERED IN A PROCEEDING PURSUANT TO SECTION 3008 OF
THE REOUSRCE CONSERVATION AND RECOVERY ACT, AS AMENDED, THAT THE
PRINCIPAL HAS VIOLATED THE POST-CLOSURE REQUIREMENTS OF 40 CFR PART 265.
FOLLOWING SUCH A DETERMINATION, THE SURETY MUST EITHER COMPLETE
POST-CLOSURE CARE OF THE FACILITY IN ACCORDANCE WITH THE APPROVED
POST-CLOSURE PLAN FOR THE FACILITY OR PAY THE AMOUNT OF THE PENAL SUM
INTO A TRUST FUND AS DIRECTED BY AN EPA REGIONAL ADMINISTRATOR.
THE LIABILITY OF THE SURETY SHALL NOT BE DISCHARGED BY ANY PAYMENT OR
SUCCESSION OF PAYMENTS HEREUNDER, UNLESS AND UNTIL SUCH PAYMENT OR
PAYMENTS SHALL AMOUNT IN THE AGGREGATE TO THE PENAL SUM OF THE BOND, BUT
IN NO EVENT SHALL THE SURETY'S OBLIGATION HEREUNDER EXCEED THE AMOUNT OF
SAID PENAL SUM. THE INSOLVENCY OR BANKRUPTCY OF THE PRINCIPAL SHALL NOT
CONSTITUTE A DEFENSE TO THE SURETY WITH REGARD TO CLAIMS OF LIABILITY ON
THE BOND OBLIGATIONS, AND IN THE EVENT OF SAID INSOLVENCY OR BANKRUPTCY,
THE SURETY MUST PAY ANY UNSATISFIED FINAL JUDGMENTS OBTAINED ON SUCH
CLAIMS. THE SURETY AGREES TO FURNISH WRITTEN NOTICE FORTHWITH TO THE
REGIONAL ADMINISTRATOR(S) OF THE EPA REGION(S) IN WHICH THE
FACILITY(IES) IS (ARE) LOCATED OF ALL SUITS FILED, JUDGMENTS RENDERED,
AND PAYMENTS MADE BY SAID SURETY UNDER THIS BOND.
THIS BOND IS EFFECTIVE THE . . . . DAY OF . . . ., 19 . . ., AT THE
ADDRESS OF THE PRINCIPAL AS STATED HEREIN AND SHALL CONTINUE IN FORCE
UNTIL THE END OF 30 YEARS OF POST-CLOSURE CARE UNLESS PRIOR NOTICE IS
RECEIVED BY THE SURETY FROM EPA, OR UNTIL TERMINATED AS HEREINAFTER
PROVIDED. THE SURETY MAY TERMINATE THIS BOND BY WRITTEN NOTICE SENT BY
CERTIFIED MAIL TO THE PRINCIPAL AND TO THE EPA REGIONAL ADMINISTRATOR(S)
OF THE REGION(S) IN WHICH THE FACILITY(IES) IS (ARE) LOCATED, SUCH
TERMINATION TO BECOME EFFECTIVE NINETY (90) DAYS AFTER ACTUAL RECEIPT OF
SUCH NOTICE BY THE AGENCY; PROVIDED, HOWEVER, THAT NO SUCH TERMINATION
SHALL BECOME EFFECTIVE IF CLOSURE OF ANY SAID FACILITY HAS TAKEN PLACE,
HAS BEGUN OR HAS BEEN ORDERED TO BEGIN BY AN EPA REGIONAL ADMINISTRATOR.
THE PRINCIPAL MAY TERMINATE THIS BOND BY SENDING WRITTEN NOTICE TO THE
SURETY, SUCH TERMINATION TO BECOME EFFECTIVE THIRTY (30) DAYS AFTER
RECEIPT OF SUCH NOTICE BY THE SURETY; PROVIDED, HOWEVER, THAT SUCH
NOTICE IS ACCOMPANIED BY WRITTEN AUTHORIZATION FOR TERMINATION OF THE
BOND BY THE REGIONAL ADMINISTRATOR(S) OF THE EPA REGION(S) IN WHICH THE
BONDED FACILITY(IES) IS (ARE) LOCATED.
IF MORE THAN ONE SURETY COMPANY JOINS IN EXECUTING THIS BOND, SUCH
ACTION SHALL CONSTITUTE JOINT AND SEVERAL LIABILITY ON THE PART OF THE
SURETIES.
IN WITNESS WHEREOF, THE PRINCIPAL AND SURETY HAVE EXECUTED THIS
INSTRUMENT ON THE . . . . DAY OF . . . ., 19 . . . (SEAL) . . . .
(SURETY) (SEAL) . . . . (PRINCIPAL) . . . . (ATTORNEY-IN-FACT)
(ADDRESS OF PRINCIPAL) . . . . SURETY BOND NO. . . . . MAIL ORIGINAL
TO THE EPA REGIONAL ADMINISTRATOR WITHIN 10 DAYS OF THE EFFECTIVE DATE
BY CERTIFIED MAIL.
800519
FEDERAL REGISTER PART 8, VOLUME 45 NUMBER 98, PROPOSED RULE'S
EPA HAZARDOUS WASTE MANAGEMENT SYSTEM PROPOSED TO MODIFY 40 CFR PART
265, 264 SUBPART H, FINANCIAL REQUIREMENTS FOR OWNERS AND OPERATORS OF
HAZARDOUS WASTE MANAGEMENT FACILITIES, FRL 1459-7
PART 020 OF 20
COSTLE D M ADMINISTRATOR
EPA
113490
REGULATIONS
IF MORE THAN ONE FACILITY IS COVERED AND THE FACILITIES ARE IN MORE
THAN ONE REGION, SEND ORIGINAL TO REGIONAL ADMINISTRATOR OF REGION IN
WHICH THE LARGEST NUMBER OF FACILITIES ARE LOCATED AND COPIES TO THE
OTHER REGIONAL ADMINISTRATOR(S), BY CERTIFIED MAIL.
(FR DOC. 80-14310 FILED 5-16-80; 8:45 AM)
BILLING CODE 6560-01-M
FEDERAL REGISTER, PART 9, VOLUME 45 NUMBER 98, 800519
EPA HAZARDOUS WASTE MANAGEMENT SYSTEM, PROPOSAL TO MODIFY 40 CFR PART 265, SUBPART R, UNDERGROUND INJECTIONS, PROPOSED RULES
FRL 1447-1
PART 001 0F 8
COSTLE D M ADMINISTRATOR
EPA
113491
REGULATIONS
TITLE PAGE OMITTED
FEDERAL REGISTER, PART 9, VOLUME 45 NUMBER 98, 800519
EPA HAZARDOUS WASTE MANAGEMENT SYSTEM, PROPOSAL TO MODIFY 40 CFR PART 265, SUBPART R, UNDERGROUND INJECTIONS, PROPOSED RULES
FRL 1447-1
PART 002 0F 8
COSTLE D M ADMINISTRATOR
EPA
113492
REGULATIONS
SUMMARY: THE ENVIRONMENTAL PROTECTION AGENCY (EPA) IS PROPOSING
SPECIFIC REQUIREMENTS FOR DISPOSAL OF HAZARDOUS WASTE BY UNDERGROUND
INJECTION UNDER SECTION 3004 OF THE RESOURCE CONSERVATION AND RECOVERY
ACT, 42 U.S.C. SECTION 6901, ET SEQ., AS AMENDED. THESE PROPOSED
REQUIREMENTS WOULD AMEND SUBPART R OF THE INTERIM STATUS REGULATIONS
APPLICABLE TO HAZARDOUS WASTE TREATMENT, STORAGE AND DISPOSAL
FACILITIES. THE PROPOSED AMENDMENT INCLUDES REQUIREMENTS CONCERNING
GENERAL OPERATING PRACTICES, WASTE ANALYSIS, MONITORING AND RESPONSE,
CLOSURE AND POST-CLOSURE CARE, FINANCIAL RESPONSIBILITY AND SPECIAL
HANDLING OF IGNITABLE, REACTIVE OR INCOMPATIBLE WASTE. A PUBLIC HEARING
WILL BE HELD TO RECEIVE PUBLIC COMMENT ON THE AMENDMENT AS WELL AS ON
ISSUES RAISED IN THE PREAMBLE TO THE REGULATIONS ISSUED UNDER PART 122
OF THIS CHAPTER CONCERNING REGULATIONS OF CLASS IV WELLS.
DATES: EPA WILL ACCEPT WRITTEN COMMENTS ON THE PROPOSED AMENDMENT
UNTIL ON OR BEFORE JULY 18, 1980.
A PUBLIC HEARING WILL BE HELD FROM 9 A.M. TO 5:00 P.M. ON JULY
8, 1980.
ADDRESSES: COMMENTS SHOULD BE ADDRESSED TO DOCKET CLERK, OFFICE OF
SOLID WASTE (WH-562), U.S. ENVIRONMENTAL PROTECTION AGENCY.
COMMUNICATIONS SHOULD IDENTIFY THE REGULATORY DOCKET NUMBER "SECTION
3004".
THE HEARING WILL BE HELD ON JULY 8, 1980 AT THE H.E.W. AUDITORIUM AT
330 INDEPENDENCE AVENUE, S.W. WASHINGTON, D.C., FROM 9:00 AM TO 5:00 PM.
THE OFFICIAL DOCKET FOR THIS PROPOSED RULEMAKING IS LOCATED IN ROOM
2711, U.S. ENVIRONMENTAL PROTECTION AGENCY, 401 M STREET, S.W.,
WASHINGTON, D.C. 20460, AND IS AVAILABLE FOR VIEWING FROM 9:00 AM TO
4:00 PM, MONDAY THROUGH FRIDAY, EXCLUDING HOLIDAYS.
FOR FURTHER INFORMATION CONTACT: MR. BERNARD J. STOLL, OFFICE OF
SOLID WASTE (WH-564), U.S. ENVIRONMENTAL PROTECTION AGENCY, 401 M
STREET, S.W., WASHINGTON, D.C. 20460, (202) 755-9116.
SUPPLEMENTARY INFORMATION: UNDERGROUND INJECTION OF HAZARDOUS WASTE
IS UNDER THE JURISDICTION OF BOTH THE RESOURCE CONSERVATION AND RECOVERY
ACT (RCRA), 42 U.S.C. SECTION 6901 ET SEQ., WHICH CREATES A "CRADLE TO
GRAVE" MANAGEMENT PROGRAM FOR ALL HAZARDOUS WASTE, AND THE SAFE DRINKING
WATER ACT (SDWA), 42 U.S.C. SECTION 300F ET SEQ.) WHICH CREATES AN
UNDERGROUND INJECTION CONTROL (UIC) PROGRAM. AFTER EXAMINING THE GOALS
AND POLICIES OF THESE TWO PROGRAMS, EPA HAS CONCLUDED THAT THE DISPOSAL
OF HAZARDOUS WASTE BY UNDERGROUND INJECTION IN EACH STATE WILL BE
REGULATED UNDER RCRA UNTIL A UIC PROGRAM HAS BEEN ESTABLISHED IN THAT
STATE.
THE HAZARDOUS WASTE MANAGEMENT PROGRAM, UNDER SUBTITLE C OF RCRA,
PROVIDES A SYSTEM FOR TRACKING AND MANAGING THOSE SOLID WASTES WHICH ARE
DEEMED "HAZARDOUS" ACCORDING TO THE CRITERIA ESTABLISHED UNDER SECTION
3001 OF RCRA. A MANIFEST SYSTEM IS EMPLOYED TO ASSURE THAT HAZARDOUS
WASTE IS PROPERLY TRANSPORTED FROM ITS POINT OF GENERATION TO FACILITIES
THAT STORE, TREAT OR DISPOSE OF THE WASTE.
UNDER SECTION 3004 OF RCRA, EPA IS TO ESTABLISH STANDARDS, APPLICABLE
TO OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE OR
DISPOSAL FACILITIES WHICH PROTECT HUMAN HEALTH AND THE ENVIRONMENT.
EVENTUALLY ALL SUCH FACILITIES WILL BE SUBJECT TO PERMITS, ISSUED
PURSUANT TO SECTION 3005 OF RCRA, WHICH IMPLEMENT THE SECTION 3004
STANDARDS AND OTHER APPROPRIATE REQUIREMENTS. UNDER SECTION 3005, ALL
TREATMENT, STORAGE OR DISPOSAL OF HAZARDOUS WASTE IS PROHIBITED, EXCEPT
IN ACCORDANCE WITH A PERMIT UNDER THAT SECTION, SIX MONTHS AFTER THE
PROMULGATION OF THE SECTION 3004 STANDARDS.
THE CONGRESS RECOGNIZED THAT IT WOULD NOT BE POSSIBLE FOR EPA TO
ISSUE ALL PERMITS WITHIN SIX MONTHS OF THE PROMULGATION OF SECTION 3004
STANDARDS. THEREFORE IT CREATED AN "INTERIM STATUS" PERIOD DURING WHICH
EXISTING FACILITIES WHICH HAVE APPLIED FOR A PERMIT MAY BE TREATED AS
HAVING BEEN ISSUED A PERMIT WHILE THE AGENCY REVIEWS AND PROCESSES THE
FACILITY'S PERMIT APPLICATION. IN KEEPING WITH THE PHILOSOPHY THAT
FACILITIES ARE TO BE TREATED AS HAVING BEEN ISSUED A PERMIT DURING THE
INTERIM STATUS PERIOD, EPA BELIEVES IT IS APPROPRIATE TO IMPOSE CERTAIN
BASIC REQUIREMENTS ON THOSE FACILITIES DURING THE INTERIM STATUS PERIOD.
THE AGENCY HAS PROMULGATED SUCH INTERIM STATUS REGULATIONS FOR
HAZARDOUS WASTE TREATMENT, STORAGE AND DISPOSAL IN A SEPARATE SECTION OF
TODAY'S FEDERAL REGISTER.
PART C OF THE SDWA CREATES A PROGRAM FOR THE PROTECTION OF
UNDERGROUND SOUCES OF DRINKING WATER. AS PART OF THAT PROGRAM, EPA IS
TO ESTABLISH REGULATIONS CONTAINING MINIMUM REQUIREMENTS FOR EFFECTIVE
STATE UNDERGROUND INJECTIONCONTROL (UIC) PROGRAMS AND THE ADMINISTRATOR
IS TO LIST IN THE FEDERAL REGISTER EACH STATE FOR WHICH, IN HIS
JUDGMENT, A STATE UIC PROGRAM MAY BE NECESSARY TO ASSURE THAT
UNDERGROUND INJECTION WILL NOT ENDANGER DRINKING WATER SOURCES. THE
ADMINISTRATOR HAS LISTED A TOTAL OF 57 STATES, TERRITORIES AND THE
DISTRICT OF COLUMBIA AS NEEDING A UIC PROGRAM. ONCE EPA HAS ESTABLISHED
THE MINIMUM REQUIREMENTS, EAST LISTED STATE SHALL APPLY FOR AND MAY
RECEIVE APPROVAL FOR PRIMARY ENFORCEMENT RESPONSIBILITY OVER UNDERGROUND
INJECTION IN THEIR STATE. IF THE STATE DOES NOT SEEK SUCH
RESPONSIBILITY, OR IF EPA DETERMINES THAT STATE AUTHORITY IS INADEQUATE
TO IMPLEMENT THE MINIMUM REQUIREMENTS, EPA SHALL ESTABLISH A UIC PROGRAM
FOR THE STATE.
THUS THE UIC PROGRAM DOES NOT HAVE AN EQUIVALENT OF THE "INTERIM
STATUS" PERIOD UNDER RCRA. TO ACCOMMODATE THE RCRA GOAL THAT DISPOSAL
OF HAZARDOUS WASTE (INCLUDING UNDERGROUND INJECTION) BE SUBJECT TO
CONTROL DURING THAT PERIOD, EPA HAS DECIDED TO REGULATE UNDERGROUND
INJECTION UNDER THE RCRA INTERIM STATUS REGULATIONS. ACCORDINGLY,
OWNERS AND OPERATORS OF UNDERGROUND INJECTION WELLS USED TO DISPOSE OF
HAZARDOUS WASTE WILL BE SUBJECT TO THE SAME GENERAL REQUIREMENTS
APPLICABLE TO ALL TREATMENT, STORAGE AND DISPOSAL FACILITIES. THESE ARE
SET FORTH IN SUBPARTS A-E OF PART 265, WHICH IS PUBLISHED IN TODAY'S
FEDERAL REGISTER. IN ADDITION THE INTERIM STATUS REGULATIONS OF PART
265 INCLUDE A SUBPART R, WHICH WILL CONTAIN SPECIFIC REQUIREMENTS
APPLICABLE TO UNDERGROUND INJECTION.
THE PROPOSED HAZARDOUS WASTE MANAGEMENT REGULATIONS OF DECEMBER 18,
1978 (43 FED REG 58946) DID NOT SPECIFICALLY ADDRESS UNDERGROUND
INJECTION. THE AGENCY HAS DECIDED TO PROPOSE THE SPECIFIC REQUIREMENTS
APPLICABLE TO UNDERGROUND INJECTION TO GAIN THE BENEFIT OF PUBLIC
COMMENT.
EPA RECOGNIZES THAT THE REGULATION OF UNDERGROUND INJECTION UNDER
RCRA MUST BE COORDINATED WITH THE UIC PROGRAM. EPA ANTICIPATES THAT
WHEN STATE UIC PROGRAMS BECOME EFFECTIVE, UNDERGROUND INJECTION OF
HAZARDOUS WASTE WHICH FALLS UNDER THE JURISDICTION OF THE UIC PROGRAM
WILL BE REGULATED UNDER THAT PROGRAM. THUS THE RCRA AND UIC PROGRAMS
MUST BE STRUCTURED TO ALLOW FOR SUCH A SHIFE WITHOUT UNNECESSARY
CONFUSION.
FEDERAL REGISTER, PART 9, VOLUME 45 NUMBER 98, 800519
EPA HAZARDOUS WASTE MANAGEMENT SYSTEM, PROPOSAL TO MODIFY 40 CFR PART 265, SUBPART R, UNDERGROUND INJECTIONS, PROPOSED RULES
FRL 1447-1
PART 003 0F 8
COSTLE D M ADMINISTRATOR
EPA
113493
REGULATIONS
EPA PLANS TO DEVELOP THIS PORTION OF THE RCRA REGULATIONS IN TANDEM
WITH THE UIC PROGRAM. CERTAIN PORTIONS OF THE UIC PROGRAM REGARDING
CLASS IV WELLS ARE BEING RE-PROPOSED TODAY. FOR A DISCUSSION OF THOSE
RE-PROPOSED ELEMENTS COMMENTERS SHOULD SEE THE PREAMBLE TO SUBPART C OF
THE PART 122 REGULATIONS PUBLISHED IN TODAY'S FEDERAL REGISTER. THE
HEARING DATES WHICH HAVE BEEN ESTABLISHED IN THIS PROPOSED REGULATION
ALSO MATCH THOSE FOR THE RE=PROPOSED ELEMENTS OF PART 122. EPA
ANTICIPATES THAT COMMENTERS AND ANY STATEMENTS AT THE HEARING TO BOTH
THE PART 122 PROPOSAL AND THIS PROPOSED AMENDMENT TO PART 265.
THE TECHNOLOGICAL REQUIREMENTS SPECIFIED IN THESE PROPOSED
REGULATIONS APPLY TO BOTH CLASS I AND CLASS IV UNDERGROUND INJECTION
WELLS, UNLESS IDENTIFIED AS APPLYING ONLY TO ONE OR THE OTHER. ALL
CLASS I WELLS HAVE SIMILAR CHARACTERISTICS SO THAT THESE APPLICATIONS
SHOULD BE EASILY UNDERSTOOD. IN THE CASE OF CLASS IV WELLS, HOWEVER,
THIS MAY NOT BE THE CASE.
UNDERGROUND INJECTION WELLS FOR DISPOSAL OF HAZARDOUS WASTE ARE
CLASSIFIED AS EITHER CLASS I OR CLASS IV. CLASS I WELLS ARE THOSE WHICH
INJECT WASTE BENEATH THE LOWERMOST FORMATION CONTAINING, WITHIN ONE
QUARTER MILE OF THE WELL BORE, AN UNDERGROUND SOURCE OF DRINKING WATER.
HOWEVER, THE CLASS IV WELLS CAN BE SUBDIVIDED INTO TWO TYPES. THE FIRST
TYPE IS THOSE CLASS IV WELLS WHICH DISCHARGE HAZARDOUS WASTE DIRECTLY
INTO UNDERGROUND SOURCES OF DRINKING WATER. THE OTHER TYPE IS THOSE
CLASS IV WELLS WHICH DISCHARGE HAZARDOUS WASTE ABOVE UNDERGROUND SOURCES
OF DRINKING WATER.
ONE OF THE KEY ISSUES CONCERNING UNDERGROUND INJECTION IS THE
APPROACH THAT SHOULD BE TAKEN UNDER RCRA AND THE SDWA TOWARD CLASS IV
WELLS THAT INVOLVE THE DIRECT INJECTION OF HAZARDOUS WASTES INTO
UNDERGROUND SOURCES OF DRINKING WATER. FOR A MORE DETAILED DESCRIPTION
OF THIS ISSUE, COMMENTERS SHOULD SEE THE PREAMBLE TO SUBPART C OF PART
122, WHICH IS PUBLISHED IN TODAY'S FEDERAL REGISTER.
COMMENTERS SHOULD BE AWARE THAT EPA IS CONSIDERING IMPLEMENTING SOME
OF THE OPTIONS DISCUSSED IN PART 122 UNDER RCRA AND MAY INCORPORATE ONE
OF THOSE OPTIONS IN THESE INTERIM STATUS REGULATIONS. UNDER SECTION
122.36 OF THE UIC PROGRAM PROPOSAL, ALL INJECTION OF HAZARDOUS WASTE
DIRECTLY INTO AN UNDERGROUND SOURCE OF DRINKING WATER THROUGH CLASS IV
WELL WOULD BE PROHIBITED SIX MONTHS AFTER APPROVAL OF A STATE PROGRAM.
EPA IS CONSIDERING A SIMILAR BAN UNDER RCRA. SUCH A BAN MIGHT BE
INSTITUTED ON THE EFFECTIVE DATE OF THE INTERIM STATUS REGULATION
IMPLEMENTING THE BAN OR AT SOME TIME AFTER THE EFFECTIVE DATE.
COMMENTERS SHOULD ALSO BE AWARE THAT EPA IS CONSIDERING INCORPORATING
SUCH A BAN INTO ITS PART 264 REGULATIONS TO ADDRESS DIRECT INJECTION
WHILE UIC PROGRAMS ARE BEING DEVELOPED.
THE AGENCY HAS NOT MADE A DECISION AT THIS TIME CONCERNING WHETHER
CLASS IV WELLS DISCHARGING HAZARDOUS WASTE ABOVE UNDERGROUND SOURCES OF
DRINKING WATER SHOULD BE BANNED. HOWEVER, THE AGENCY BELIEVES THAT IN
THE EVENT IT DECIDES TO ALLOW SUCH WELLS TO CONTINUE TO OPERATE, THAT IT
SHOULD ALERT THE PUBLIC TO THE KINDS OF TECHNICAL CONTROLS IT IS
CONSIDERING IMPOSING SO THAT THE PUBLIC CAN MEANINGFULLY COMMENT ON
THEM.
CLASS IV WELLS DISCHARGE HAZARDOUS WASTE INTO OR ABOVE UNDERGROUND
SOURCES OF DRINKING WATER THROUGH A VARIETY OF UNDERGROUND INJECTION
DEVICES. AS ALREADY DISCUSSED IN THIS PREAMBLE, NO TECHNICAL
REQUIREMENTS ARE INCLUDED IN THESE REGULATIONS FOR CLASS IV WELLS WHICH
DISCHARGE DIRECTLY INTO UNDERGROUND SOURCES OF DRINKING WATER.
REQUIREMENTS ARE INCLUDED IN THESE REGULATIONS, HOWEVER, FOR THOSE CLASS
IV WELLS WHICH DISCHARGE HAZARDOUS WASTE ABOVE UNDERGROUND SOURCES OF
DRINKING WATER. BECAUSE OF THE VARIETY OF DEVICES CLASSIFIED AS CLASS
IV WELLS WHICH DISCHARGE ABOVE UNDERGROUND SOURCES OF DRINKING WATER,
THE AGENCY RECOGNIZES THAT DIFFICULTIES ARISE IN DEVELOPING REQUIREMENTS
THAT WOULD APPLY TO ALL SUCH INJECTION DEVICES.
THERE ARE ESSENTIALLY FOUR GROUPS OR TYPES OF THESE CLASS IV DEVICES.
THEY ARE BEST DESCRIBED BY EXPRESSING THEM IN COMPARISON TO OTHER
DEVICES AND TECHNIQUES. THE FIRST TYPE ARE THOSE NORMALLY CALLED WELLS,
WHICH ARE SIMILAR TO THE USUAL DUG OR DRILLED WELL, WITH OR WITHOUT WELL
CASING OR OTHER FABRICATED SIDE WALLS. THEY ARE ALWAYS CONSIDERABLY
DEEPER THAN THEY ARE WIDE. THE SECOND TYPE OF SIMILAR TO THE FIRST BUT
USUALLY MUCH SHALLOWER THAN THE FIRST. THEY ARE USUALLY REFERRED TO AS
PITS AND ARE SIMILAR IN MOST ASPECTS TO SURFACE IMPOUNDMENTS. THEY ARE
USUALLY OPEN AT THE TOP AND CONSTRUCTED TO ALLOW LIQUID TO SEEP THROUGH
THE BOTTOM AND SIDES INTO SURROUNDING SOIL. THE THIRD TYPE IS MORE A
TREATMENT DEVICE THAN AN INJECTION DEVICE. THEY ARE USUALLY BURIED
RIGID VESSELS DESIGNED TO CONTAIN WASTE FOR CHEMICAL, PHYSICAL OR
BIOLOGICAL TREATMENT AND EQUIPPED WITH DISTINCT INFLUENT AND EFFLUENT
PIPES. SEPTIC TANKS, DEVICES WHICH ARE DESIGNED TO TREAT WASTE
BIOLOGICALLY UNDER ANAEROBIC CONDITIONS, ARE AN EXAMPLE OF THIS TYPE.
THE FOURTH AND FINAL TYPE ARE THOSE THAT ARE DESIGNED TO DISTRIBUTE
FLUIDS BENEATH THE GROUND SURFACE OVER A RELATIVELY LARGE AREA AND
USUALLY INVOLVE BURIED LATERAL PIPES OR TRENCHES. AN EXAMPLE OF THIS
TYPE IS A LEACHING FIELD WHICH DISTRIBUTES EFFLUENT FROM A SEPTIC TANK.
AS CAN BE SEEN FROM THIS DISCUSSION A GIVEN REQUIREMENT FOR ONE TYPE
OF DEVICE MAY NOT BE APPROPRIATELY APPLIED TO THE OTHER THREE DEVICES.
FOR THIS REASON THE AGENCY HAS DIRECTED THE REQUIREMENTS IN THESE
PROPOSED REGULATIONS PRIMARILY TO THOSE CLASS IV UNDERGROUND INJECTION
DEVICES WHICH ARE NORMALLY THOUGHT OF AS WELLS.
IN ADDITION TO, OR INSTEAD OF, THE REQUIREMENTS SPECIFIED IN THESE
PROPOSED REGULATIONS FOR CLASS IV UNDERGROUND INJECTION DEVICES, THE
AGENCY IS CONSIDERING THE SPECIFICATION OF OTHER MORE APPROPRIATE
REQUIREMENTS FOR THOSE CLASS IV UNDERGROUND INJECTION DEVICES WHICH DO
NOT TYPIFY WELLS.
IN PARTICULAR, THE AGENCY IS CONSIDERING THE REQUIREMENTS SPECIFIED
IN PART 265-SUBPART K. SURFACE IMPOUNDMENTS, OR SIMILAR REQUIREMENTS
FOR APPLICATION TO THE SECOND TYPE DESCRIBED ABOVE (I.E., PITS). THE
REQUIREMENTS SPECIFIED IN PART 265-SUBPART Q, CHEMICAL, PHYSICAL, AND
BIOLOGICAL TREATMENT OR SIMILAR REQUIREMENTS ARE BEING CONSIDERED FOR
APPLICATION TO THE THIRD TYPE (E.G., SEPTIC TANKS) AND THE REQUIREMENTS
IN PART 265-SUBPART M. LAND TREATMENT, OR SIMILAR REQUIREMENTS FOR THE
FOURTH OR REMAINING TYPE. THE AGENCY SPECIFICALLY INVITES COMMENT ON
THE APPROPRIATENESS OF APPLYING THESE REQUIREMENTS TO CALSS IV
UNDERGROUND INJECTION DEVICES.
BECAUSE OF THE SIMILARITY BETWEEN THESE LATTER THREE TYPES OF
INJECTION DEVICES AND THOSE HAZARDOUS WASTE MANAGEMENT TECHNIQUES TO BE
CONTROLLED BY REGULATION IN ACCORDANCE WITH THE PART 265 REQUIREMENTS
UNDER RCRA, THE AGENCY IS ALSO CONSIDERING REGULATING THESE INJECTION
TECHNIQUES UNDER RCRA ONLY, NOW AND IN THE FUTURE. THE UIC PROGRAM
WOULD STILL ASSUME REGULATORY RESPONSIBILITY FOR THOSE OF THESE
INJECTION TECHNIQUES WHICH ARE GENERALLY CONSIDERED AS WELLS (I.E., THE
FIRST TYPE) WHEN SUCH PROGRAMS GO INTO EFFECT. THE AGENCY INVITES
SPECIFIC COMMENTS ON THIS CONCEPT.
THESE PROPOSED REGULATIONS INCLUDE A LIMITED NUMBER OF DEFINITIONS,
USED THROUGHOUT THE REGULATIONS. THESE DEFINITIONS ALSO APPEAR IN
SECTION 122.3 OF THE PART 122 REGULATIONS PUBLISHED IN TODAY'S FEDERAL
REGISTER. THE AGENCY WILL BE DEVELOPING ADDITIONAL APPROPRIATE
DEFINITIONS FOR THIS PROPOSED REGULATION IN CONJUNCTION WITH THE PART
146 REGULATIONS WHICH ARE NOW UNDER DEVELOPMENT.
FEDERAL REGISTER, PART 9, VOLUME 45 NUMBER 98, 800519
EPA HAZARDOUS WASTE MANAGEMENT SYSTEM, PROPOSAL TO MODIFY 40 CFR PART 265, SUBPART R, UNDERGROUND INJECTIONS, PROPOSED RULES
FRL 1447-1
PART 004 0F 8
COSTLE D M ADMINISTRATOR
EPA
113494
REGULATIONS
THE VARIOUS REQUIREMENTS INCLUDED IN THESE PROPOSED REGULATIONS ARE
DISCUSSED AS FOLLOWS:
THESE PROPOSED REGULATIONS INCLUDE SPECIFIC OPERATIONAL REQUIREMENTS
FOR CLASS I WELLS WHICH DISPOSE OF HAZARDOUS WASTE BENEATH THE LOWERMOST
FORMATION CONTAINING, WITHIN ONE QUARTER MILE OF THE WELL BORE, AN
UNDERGROUND SOURCE OF DRINKING WATER. SUCH WELLS TYPICALLY PASS THROUGH
OVERLYING AQUIFERS WHICH ARE TO BE PROTECTED AS UNDERGROUND SOURCES OF
DRINKING WATER. THIS PROTECTION INVOLVES REQUIREMENTS THAT INJECTIONS
ONLY OCCUR THROUGH PROPERLY DESIGNED AND CONSTRUCTED WELLS. THE
INJECTION OF HAZARDOUS WASTE MUST BE ACCOMPLISHED THROUGH TUBING INSIDE
OF A WELL CASING WHICH IS CEMENTED TO THE WELL BORE. FURTHERMORE, THE
ANNULAR SPACE BETWEEN THE TUBING AND CASING MUST BE FILLED WITH A
SUITABLE FLUID. AS WILL BE DISCUSSED LATER, THE INTEGRITY OF THESE
SEALS IS TO BE DEMONSTRATED BY A MONITORING PROGRAM. A FINAL
REQUIREMENT FOR PROTECTING AQUIFERS OVERLYING THE INJECTION FORMATION IS
THE PROHIBITION OF INJECTION OF HAZARDOUS WASTE BETWEEN THE OUTERMOST
CASING AND THE WELL BORE. ADDITIONAL OPERATIONAL CONTROLS INCLUDE
LIMITATIONS PLACED ON INJECTION PRESSURE BASED ON CONDITIONS IN THE
INJECTION ZONE. THESE LIMITS ARE SET TO PREVENT THE MIGRATION OF
HAZARDOUS WASTE, HAZARDOUS WASTE CONSTITUENTS, OR FORMATION FLUIDS FROM
THE INJECTION ZONE INTO UNDERGROUND SOURCES OF DRINKING WATER. THIS
MIGRATION COULD OCCUR EITHER THROUGH FRACTURES IN THE INJECTION ZONE AND
THE CONFINING ZONE, OR THROUGH IMPROPERLY COMPLETED OR PLUGGED WELLS
PENETRATING THE INJECTION ZONE. TO PREVENT MIGRATION BY THE FIRST OF
THESE PATHWAYS THE PRESSURE IN THE INJECTION FORMATION MUST REMAIN BELOW
A CALCULATED MAXIMUM KNOWN AS FRACTURE PRESSURE. THE INJECTIONPRESSURE
MUST AT ALL TIMES REMAIN LESS THAN THE FRACTURE PRESSURE. TO PREVENT
CONTAMINATION BY THE SECOND PATHWAY, THE OWNER OR OPERATOR CAN EITHER
CORRECT THE PROBLEMS IN THESE WELLS OR INJECT AT A REDUCED PRESSURE SUCH
THAT THE INJECTED FLUIDS WILL NOT REACH THE IMPROPERLY PLUGGED OR
COMPLETED WELLS. FACILITIES UNDER INTERIM STATUS ARE EXISTING
FACILITIES FOR WHICH PROPER INJECTION PRESSURES HAVE ALREADY BEEN
DETERMINED. THE REGULATIONS REQUIRE THAT THE OWNER OR OPERATOR CONTROL
AND MONITOR HIS INJECTION PRESSURE TO PREVENT MIGRATION OF HAZARDOUS
WASTE OR HAZARDOUS WASTE CONSTITUENTS OUT OF THE INJECTION ZONE BY
EITHER PATHWAY.
THE ABOVE DISCUSSION APPLIES ONLY TO CLASS WELLS DISPOSING OF
HAZARDOUS WASTE. THE REGULATIOS DO NOT INCLUDE ANY GENERAL OPERATING
REQUIREMENTS FOR CLASS IV WELLS WHICH INJECT ABOVE UNDERGROUND SOURCES
OF DRINKING WATER. SINCE THESE WELLS ARE INTENDED TO INTRODUCE
INJECTION FLUIDS ABOVE UNDERGROUND SOURCES OF DRINKING WATER,
REQUIREMENTS TO PREVENT LEAKAGE FROM THE WELL ARE NOT PERTINENT. AS
WILL BE DISCUSSED LATER, HOWEVER, THE REGULATIONS DO SPECIFY
GROUND-WATER MONITORING REQUIREMENTS FOR THESE WELLS.
FACILITIES WHICH DISPOSE OF HAZARDOUS WASTE BY UNDERGROUND INJECTION
MUST COMPNY WITH THE SECTION 265.13 GENERAL WASTE ANALYSIS REQUIREMENTS.
IN ADDITION, IN THE CASE OF UNDERGROUND INJECTION, THE OWNER OR
OPERATOR MUST ASCERTAIN THAT THE WASTE IS COMPATIBLE WITH THE COMPONENTS
OF THE WELL AND THE INJECTION FORMATION. TRIAL TESTS ARE REQUIRED WHEN
A WELL IS USED TO INJECT A DIFFERENT HAZARDOUS WASTE TO ENSURE THAT THE
NEW WASTE WILL NOT REACT WITH PREVIOUSLY INJECTED FLUIDS, THE INJECTION
FORMATION OR COMPONENTS OF THE WELL AND FORM GASES WHICH COULD CAUSE A
THREAT TO PUBLIC HEALTH OR THE ENVIRONMENT, OR OTHERWISE DAMAGE THE WELL
OR THE RECEIVING FORMATION. TEST RESULTS MUST DEMONSTRATE COMPLIANCE
WITH THE REQUIREMENTS OF SECTION 265.17 (B). IF THE OWNER OR OPERATOR
HAS ON HAND INFORMATION DEMONSTRATING THE COMPATIBILITY OF VARIOUS
HAZARDOUS WASTES WITH THE WELL COMPONENTS AND THE INJECTION FORMATION
THE TRIAL TESTS NEED NOT BE PERFORMED.
IN SECTION 265.437 OF THE PROPOSED REGULATIONS THE UNDERGROUND
INJECTION OF IGNITABLE, REACTIVE, AND INCOMPATIBLE WASTE IS
PROHIBITED UNLESS SUCH INJECTION COMPLIES WITH SECTION 265.17(B).
AS DISCUSSED EARLIER IN THE DISCUSSION OF GENERAL OPERATING
REQUIREMENTS, FOR CLASS I WELLS BOTH THE MECHANICAL INTEGRITY AND THE
INJECTION ZONE PRESSURE ARE TO BE MONITORED.
MONITORING TO ASSURE THE MECHANICAL INTEGRITY OF THE WELL IS TO BE
ACCOMPLISHED BY APPLYING A SELECTED PRESSURE TO THE MATERIAL PLACED IN
THE ANNULAR SPACE BETWEEN THE TUBING AND THE WELL CASING, AND THEN
MONITORING THE PRESSURE FOR CHANGES. ANY ABRUPT CHANGE IN THE MEASURED
PRESSURE INDICATES THAT THE TUBING IS LEAKING INTO THE ANNULAR SPACE.
IN DETERMINING THE PRESSURE TO BE APPLIED TO THE ANNULAR SPACE THE OWNER
OR OPERATOR MUST ESTABLISH AN ALLOWABLE RANGE BASED ON GENERALLY
ACCEPTED ENGINEERING PRACTICES. A SUDDEN LEAK OR FRACTURE IN THE TUBING
OR CASING WOULD CAUSE AN ABRUPT CHANGE IN THE ANNULAR PRESSURE. IF A
SIGNIFICANT CHANGE IN THE ANNULAR PRESSURE IS DETECTED, THE OWNER OR
OPERATOR IS REQUIRED TO TAKE APPROPRIATE CORRECTIVE ACTION TO RESTORE
MECHANICAL INTEGRITY. THIS ACTION MAY INCLUDE REPLACING OR REPAIRING
TUBING, CASING, SEALS OR OTHER APPURTENANCES.
THESE PROPOSED REGULATIONS DO NOT SPECIFY APPROPRIATE ANNULAR
PRESSURES OR THE MEANS TO RESTORE MECHANICAL INTEGRITY. THE REGULATIONS
DO REQUIRE THE OWNER OR OPERATOR TO IMPLEMENT A MONITORING PROGRAM TO
DEMONSTRATE MECHANICAL INTEGRITY OF CLASS I WELLS BASED UPON A PLAN
PREPARED AND SUBMITTED TO THE REGIONAL ADMINISTRATOR, ALL ON THE
EFFECTIVE DATE OF THESE REGULATIONS. CONTINUOUS MONITORING OF ANNULAR
PRESSURE IS COMMONLY EMPLOYED AT CLASS I FACILITIES AND THEREFORE THE
AGENCY IS REQUIRING CONTINUOUS MONITORING AND RECORDING. IN ADDITION TO
THE ANNUAL REPORT THAT THE AGENCY IS CONSIDERING REQUIRING NOTICE WITHIN
A SPECIFIED PERIOD (E.G., 24 HOURS) ANY READINGS FALLING OUTSIDE THE
ALLOWABLE RANGE.
MONITORING OF THE INJECTION PRESSURE IS ALSO REQUIRED, FOR CLASS I
WELLS. AS DISCUSSED EARLIER IN THIS DOCUMENT, INJECTION AT TOO HIGH A
PRESSURE CAN CAUSE HAZARDOUS WASTE, HAZARDOUS WASTE CONSTITUENTS, OR
FORMATION FLUIDS TO MIGRATE FROM THE INJECTION ZONE. TO GUARD AGAINST
THIS POSSIBILITY, THE OWNER OR OPERATOR MUST MEASURE THE INJECTION
PRESSURE TO ASSURE THAT IT DOES NOT EXCEED THE ALLOWABLE PRESSURE IN THE
INJECTION ZONE. SINCE THE PRESSURE IS MEASURED AT THE WELL HEAD AND NOT
IN THE INJECTION ZONE ITSELF, HE MUST CALCULATE, BASED UPON GENERALLY
ACCEPTED ENGINEERING PRINCIPLES, THE MAXIMUM ALLOWABLE PRESSURE AT THE
WELL HEAD BASED ON E CHARACTERISTICS OF BOTH THE FLUID BEING INJECTED
AND THE INJECTION WELL APPARATUS. IF THE WELL HEAD PRESSURE EXCEEDS THE
ALLOWABLE LIMIT, THE OWNER OR OPERATOR MUST MODIFY HIS INJECTION PROCESS
TO RESTORE THE INJECTION PRESSURE TO WITHIN ALLOWABLE LIMITS. FOR MORE
INFORMATION ON THIS SUBJECT SEE "AN INTRODUCTION TO THE TECHNOLOGY OF
SUBSURFACE WASTEWATER INJECTION," EPA-600/2-77-240, DECEMBER 1977.
AS WITH THE MECHANICAL INTEGRITY MONITORING PROGRAM, THE OWNER OR
OPERATOR MUST, ON THE EFFECTIVE DATE OF THESE REGULATIONS, DEVELOP AND
SUBMIT TO THE REGIONAL ADMINISTRATOR A PLAN FOR INJECTION PRESSURE
MONITORING AND THEN IMPLEMENT IT. THIS PLAN MUST INCLUDE A
SPECIFICATION OF CONTINUOUS MONITORING AND RECORDING. THE AGENCY IS
CONSIDERING, IN ADDITION TO THE ANNUAL REPORT, REQUIRING PERIODIC OR
EPISODIC REPORTING.
FEDERAL REGISTER, PART 9, VOLUME 45 NUMBER 98, 800519
EPA HAZARDOUS WASTE MANAGEMENT SYSTEM, PROPOSAL TO MODIFY 40 CFR PART 265, SUBPART R, UNDERGROUND INJECTIONS, PROPOSED RULES
FRL 1447-1
PART 005 0F 8
COSTLE D M ADMINISTRATOR
EPA
113495
REGULATIONS
THE OWNER OR OPERATOR IS REQUIRED TO KEEP RECORDS OF MONITORING DATA
AND EVALUATIONS THROUGHOUT THE ACTIVE LIFE OF THE FACILITY. HE MUST
ALSO SUBMIT TO THE REGIONAL ADMINISTRATOR AN ANNUAL REPORT ON HIS
MECHANICAL INTEGRITY AND INJECTION PRESSURE MONITORING PROGRAMS. THE
REPORT MUST CONTAIN A DESCRIPTION OF ANY CORRECTIVE ACTIONS INSTITUTED
DURING THE YEAR AND THE CIRCUMSTANCES WHICH NECESSITATED THE CORRECTIVE
ACTIONS.
IN THE CASE OF CLASS IV WELLS USED TO DISPOSE OF HAZARDOUS WASTE BY
INJECTION ABOVE AN UNDERGROUND SOURCE OF DRINKING WATER, THESE PROPOSED
REGULATIONS REQUIRE COMPLIANCE WITH THE REQUIREMENTS OF PART 265 SUBPART
F -- GROUNDWATER MONITORING.
THE AGENCY BELIEVES THAT WELLS INJECTING HAZARDOUS WASTE ABOVE AN
UNDERGROUND SOURCE OF DRINKING WATER ARE VERY SMIILAR TO SURFACE
IMPOUNDMENTS USED FOR THE STORAGE, TREATMENT OR DISPOSAL OF HAZARDOUS
WASTE IN TERMS OF POTENTIAL GROUND-WATER CONTAMINATION. THIS IS
ESPECIALLY TRUE IF THE SURFACE IMPOUNDMENT LEAKS. BECAUSE OF THIS
SIMILARITY, THE PROPOSED REGULATIONS SPECIFY THE SAME GROUNDWATER
MONITORING REQUIREMENTS FOR THESE WELLS AS THOSE WHICH APPLY TO SURFACE
IMPOUNDMENTS, INCLUDING THE RECORDKEEPING AND REPORTING REQUIREMENTS OF
SUBPART F.
SUBPART F REQUIRES INDICATOR MONITORING WHICH MAY LEAD TO A
GROUNDWATER QUALITY ASSESSMENT PROGRAM. FOR THOSE FACILITIES WHERE NO
HAZARDOUS WASTE OR HAZARDOUS WASTE CONSTITUENTS ARE THOUGHT TO BE
ENTERING THE GROUND WATER, AN INDICATOR MONITORING PROGRAM TO DETECT
LEAKS IS DESCRIBED. FOR THOSE FACILITIES WHERE GROUND-WATER
CONTAMINATION BY HAZARDOUS WASTE OR HAZARDOUS WASTE CONSTITUENTS FROM
THE FACILITY IS KNOWN OR ASSUMED TO EXIST, THE SUBPART F REGULATIONS
DESCRIBE A GROUND-WATER QUALITY ASSESSMENT PROGRAM TO ESTABLISH THE
MAGNITUDE OF THE IMPACT ON THE GROUND WATER. SINCE MOST CLASS IV WELLS
MAY ALREADY HAVE CONTRIBUTED HAZARDOUS WASTE OR HAZARDOUS WASTE
CONSTITUENTS TO THE GROUND WATER, THE AGENCY ANTICIPATES THAT A
GROUND-WATER QUALITY ASSESSMENT PROGRAM WILL BE IMPLEMENTED AT MOST
CLASS IV INJECTION WELL FACILITIES.
THE REGULATIONS REQUIRE AN OWNER OR OPERATOR TO CLOSE HIS INJECTION
WELL IN SUCH A WAY THAT MIGRATION OF HAZARDOUS WASTE OR HAZARDOUS WASTE
CONSTITUENTS INTO OR BETWEEN UNDERGROUND SOURCES OF DRINKING WATER IS
PREVENTED. FURTHERMORE, THE NEED FOR MAINTENANCE TO PROTECT HUMAN
HEALTH AND THE ENVIRONMENT IS TO BE MINIMIZED. ON THE EFFECTIVE DATE OF
THESE REGULATIONS THE OWNER OR OPERATOR IS REQUIRED TO HAVE A WRITTEN
PLAN FOR CLOSURE OF HIS INJECTION WELL AT THE END OF ITS INTENDED LIFE
OR, FOR THAT MATTER, AT ANY OTHER TIME THAT CLOSURE WOULD BE NECESSARY.
THE CLOSURE PLAN MUST DESCRIBE THE STEPS WHICH WILL NEED TO BE TAKEN TO
CLOSE THE INJECTION WELL.
THESE PROPOSED REGULATIONS SPECIFY REQUIREMENTS FOR CLOSURE PLAN
AMENDMENTS, PLAN APPROVAL, AND NOTIFICATION WHICH ARE VERY SIMILAR TO
THE FACILITY CLOSURE REQUIREMENTS SPECIFIED IN PART 265 -- SUBPART G,
CLOSURE AND POST-CLOSURE. COMMENTERS MAY WISH TO REVIEW THESE PROPOSED
REQUIREMENTS IN CONSIDERATION OF SUBPART G.
IN THE CASE OF GLASS I WELLS, THESE REGULATIONS SPECIFY THAT CLOSURE
MUST BE ACCOMPLISHED BY PLUGGING. COMMON PLUGGING TECHNIQUES INCLUDE:
THE BALANCE METHODS; THE DUMP BAILER METHODS; AND THE TWO-PLUG METHOD.
EACHOF THESE TECHNIQUES REQUIRES THAT THE WELL BE BROUGHT INTO A STATE
OF STATIC EQUILIBRIUM, EITHER BY CIRCULATING THE MUD IN THE WELL AT
LEAST ONCE OR A COMPARABLE METHOD, PRIOR TO PLACEMENT OF THE CEMENT
PLUG(S). FOR MORE INFORMATION SEE "CEMENTING" BY DWIGHT K. SMITH
CHAPTER 10, MONOGRAPH VOLUME 4, HENRY L. DOHERTY SERIES, SPE OF AIME,
1976.
IN THE CASE OF CLASS IV WELLS WHICH ARE USED TO DISPOSE OF HAZARDOUS
WASTE BY INJECTION ABOVE UNDERGROUND SOURCES OF DRINKING WATER, THE
OWNER OR OPERATOR MUST REMOVE REMAINING HAZARDOUS WASTE FROM THE
INJECTION WELL AND THEN CLOSE THE WELL, IN ACCORDANCE WITH THE FACILITY
CLOSURE PLAN TO SATISFY SECTION 265.435(A). ONE METHOD OF MEETING THIS
OBJECTIVE IS TO PRECLUDE THE INJECTION OF ADDITIONAL FLUIDS, EVEN THOSE
WHICH ARE NOT HAZARDOUS WASTE, WHICH COULD RESULT IN MOBILIZATION OF
HAZARDOUS WASTE REMAINING IN THE AERATION ZONE AND INTRODUCTION OF THESE
SUBSTANCES INTO THE GROUND WATER.
A "COMMENT" INCLUDED IN THE PROPOSED REGULATIONS REMINDS THE OWNER OR
OPERATOR THAT ANY WASTE REMOVED FROM THE INJECTION WELL DURING CLOSURE
MUST BE MANAGED AS A HAZARDOUS WASTE, UNLESS HE DEMONSTRATES THAT THE
WASTE IS NOT HAZARDOUS.
FOLLOWING CLOSURE, THE OWNER OR OPERATOR OF A CLASS IV WELL MUST
IMPLEMENT HIS POST-CLOSURE PLAN. THESE PROPOSED REGULATIONS IMPOSE THE
POST-CLOSURE REQUIREMENTS SPECIFIED IN SUBPART G, WHICH, IN THE CASE OF
UNDERGROUND INJECTION, INVOLVE POST-CLOSURE MONITORING OF THE GROUND
WATER IN ACCORDANCE WITH SUBPART F. EPA BELIEVES THAT SUCH POST-CLOSURE
MONITORING IS APPROPRIATE SINCE HAZARDOUS WASTE MAY REMAIN IN THE SOIL
ADJACENT TO THE INJECTION WELL. THIS MONITORING WILL DETERMINE WHETHER
THE WASTE MIGRATES TO GROUND WATER AND, IF SUCH MIGRATION OCCURS, WHAT
DEGREE OF CONTAMINATION OCCURS. THE LATTER DETERMINATION MUST, AT A
MINIMUM, INCLUDE A PREDICTION OF THE RATE OF MIGRATION OF THE
CONTAMINANTS IN THE SATURATED ZONE. IF THE WELL IS CONTAMINATING GROUND
WATER THE ASSESSMENT OF CONTAMINATION IN THE GROUND WATER MUST CONTINUE
AS LONG AS WASTE IS BEING INJECTED (I.E., UNTIL CLOSURE OF THE
FACILITY). THIS IS NECESSARY TO ACCOUNT FOR DIFFERENCE IN THE WASTE
INJECTED (E.G., VOLUME, CONSTITUENTS).
IF CONTAMINATION FIRST APPEARS DURING THE POST-CLOSURE PERIOD A
SINGLE GROUND-WATER QUALITY ASSESSMENT (INCLUDING A PREDICTION OF THE
RATE OF MIGRATION) SHOULD BE SUFFICIENT TO CHARACTERIZE LIKELY FUTURE
CONTAMINATION. WHILE THE AGENCY BELIEVES THAT THE POST-CLOSURE
MONITORING REQUIREMENTS OF SUBPART F ARE APPLICABLE TO CLASS IV WELLS
THAT INJECT ABOVE AN UNDERGROUND SOURCE OF DRINKING WATER, THE AGENCY
DOES NOT EXPECT THAT MOST CLASS IV WELLS WILL BE ENGAGING IN EXTENSIVE
POST-CLOSURE MONITORING. MANY CLASS IV WELLS WILL HAVE TRIGGERED THE
GROUND-WATER QUALITY ASSESSMENT PROGRAM OF SUBPART F DURING THE ACTIVE
LIFE OF THE FACILITY. SUCH FACILITIES WOULD ONLY MONITOR UNTIL FINAL
CLOSURE. THOSE THAT ARE USING THE INDICATOR MONITORING SYSTEM DURING
THE POST-CLOSURE PERIOD ARE LIKELY TO DISCOVER AN IMPACT ON GROUND
WATER. UNDER SUBPART F, SUCH FACILITIES NEED ONLY COMPLETE AND REPORT
ON A SINGLE GROUND WATER QUALITY ASSESSMENT.
IN IMPOSING FINANCIAL REQUIREMENTS ON THE OWNERS OR OPERATORS OF
UNDERGROUND INJECTION FACILITIES, THESE PROPOSED REGULATIONS DRAW A
DISTINCTION BETWEEN THE CLOSURE AND POST-CLOSURE REQUIREMENTS. SINCE
CLOSURE IS ACCOMPLISHED ESSENTIALLY THROUGH PLUGGING, IT IS APPROPRIATE
TO USE FINANCIAL REQUIREMENTS SIMILAR TO THOSE IN SECTION 122.42 (G),
WHICH SEEM APPROPRIATE FOR SUCH TECHNIQUES. SINCE THE POST-CLOSURE
REQUIREMENTS OF THIS SUBPART ARE BASED ONTHE REQUIREMENTS OF SUBPART G
OF THIS PART, IT IS APPROPRIATE TO USE FINANCIAL RESPONSIBILITY
REQUIREMENTS SIMILAR TO THOSE IN SUBPART H OF THISPART.
THE AGENCY IS ALSO CONSIDERING DISTINGUISHING BETWEEN CLASS I AND
CLASS IV WELLS FOR PURPOSES OF FINANCIAL RESPONSIBILITY. UNDER THIS
ALTERNATIVE APPROACH, REQUIREMENTS FOR CLASS I WELLS (WHICH DO NOT HAVE
POST-CLOSURE REQUIREMENTS) WOULD BE BASED ON THOSE IN SECTION 122.42
(G). THE REQUIREMENTS FOR CLASS IV WELLS (WHICH WOULD INCLUDE
REQUIREMENTS DURING THE POST-CLOSURE PERIOD) WOULD BE BASED ON SUBPART
H.
FEDERAL REGISTER, PART 9, VOLUME 45 NUMBER 98, 800519
EPA HAZARDOUS WASTE MANAGEMENT SYSTEM, PROPOSAL TO MODIFY 40 CFR PART 265, SUBPART R, UNDERGROUND INJECTIONS, PROPOSED RULES
FRL 1447-1
PART 006 0F 8
COSTLE D M ADMINISTRATOR
EPA
113496
REGULATIONS
THE AGENCY IS ALSO CONSIDERING IMPOSING EITHER ALL OF SUBPART H OR
REQUIREMENTS SIMILAR TO THOSE IN SECTION 122.42 (G) ON ALL UNDERGROUND
INJECTION FACILITIES DISPOSING OF HAZARDOUS WASTE ABOVE UNDERGROUND
SOURCES OF DRINKING WATER.
THE AGENCY HAS DECIDED TO REPROPOSE FINANCIAL RESPONSIBILITY
REQUIREMENTS FOR OWNERS OR OPERATORS OF HAZARDOUS WASTE MANAGEMENT
FACILITIES. TO THE EXTENT APPROPRIATE, THE AGENCY MAY DECIDE TO
PROMULGATE SUCH REQUIREMENTS FOR OWNERS OR OPERATORS OF WELLS USED TO
DISPOSE OF HAZARDOUS WASTE, AT THE TIME IT PROMULGATES SUCH REQUIREMENTS
FOR OTHER HAZARDOUS WASTE MANAGEMENT FACILITIES.
DATED: MAY 2, 1980.
DOUGLAS M, COSTLE, ADMINISTRATOR.
IT IS PROPOSED TO FURTHER AMEND TITLE 40 CFR, PART 265, BY ADDING
SECTIONS 265.431 -- 265.437 TO SUBPART R, WHICH HAS BEEN PROMULGATED IN
TODAY'S FEDERAL REGISTER AS FOLLOWS:
THE FOLLOWING DEFINITIONS PROMULGATED IN SECTION 122.3 OF THIS
CHAPTER APPLY:
FORMATION MEANS A BODY OF ROCK CHARACTERIZED BY A DEGREE OF
LITHOLOGIC HOMOGENEITY; WHICH IS PREVAILINGLY, BUT NOT NECESSARILY,
TABULAR AND MAPPABLE ON THE EARTH'S SURFACE OR TRACEABLE IN THE
SUBSURFACE.
FORMATION FLUID MEANS "FLUID" PRESENT IN A "FORMATION" UNDER NATURAL
CONDITIONS AS OPPOSED TO INTRODUCED FLUIDS, SUCH AS DRILLING MUD.
INJECTION WELL MEANS A "WELL" INTO WHICH "FLUIDS" ARE BEING INJECTED.
INJECTION ZONE MEANS A GEOLOGICAL "FORMATION", GROUP OF FORMATIONS,
OR PART OF A FORMATION RECEIVING FLUIDS THROUGH A WELL.
PLUGGING MEANS THE ACT OR PROCESS OF STOPPING THE FLOW OF WATER, OIL,
OR GAS IN FORMATIONS PENETRATED BY A BOREHOLE OR WELL.
UNDERGROUND SOURCE OF DRINKING WATER ("USDW") MEANS AN AQUIFER OR ITS
PORTIONS; (A) WHICH SUPPLIES DRINKING WATER FOR HUMAN CONSUMPTION; OR
(B) IN WHICH THE GROUND WATER CONTAINS FEWER THAN 10,000 MG/1 "TOTAL
DISSOLVED SOLIDS".
THE OWNER OR OPERATOR OF A CLASS I WELL FOR DISPOSAL OF HAZARDOUS
WASTE MUST PREVENT MIGRATION OF HAZARDOUS WASTE OR HAZARDOUS WASTE
CONSTITUENTS INTO OR BETWEEN UNDERGROUND SOURCES OF DRINKING WATER AS
FOLLOWS:
(A) WELLS MUST BE CASED AND CEMENTED BETWEEN THE WELL BORE AND
CASING;
(B) HAZARDOUS WASTE MUST BE INJECTED THROUGH TUBING, WITH A PACKER
SET IMMEDIATELY ABOVE THE INJECTION ZONE AND WITH THE ANNULUS BETWEEN
THE TUBING AND THE LONG STRING OF CASINGS FILLED WITH FLUID, OR BY
ANOTHER EQUALLY EFFECTIVE TECHNIQUE FOR WHICH THE OWNER OR OPERATOR HAS
A WRITTEN DEMONSTRATION, AVAILABLE FOR REVIEW BY THE REGIONAL
ADMINISTRATOR, INDICATING THAT IT PROVIDES A COMPARABLE LEVEL OF
PROTECTION TO UNDERGROUND SOURCES OF DRINKING WATER.
(C) INJECTION OF HAZARDOUS WASTE BETWEEN THE OUTERMOST CASING AND THE
WELL BORE IS PROHIBITED; AND
(D) INJECTION PRESSURE AT THE WELL HEAD MUST NOT EXCEED A MAXIMUM
PRESSURE WHICH MUST BE CALCULATED SO AS TO ASSURE THAT THE PRESSURE IN
THE INJECTION ZONE DURING INJECTION DOES NOT INITIATE NEW FRACTURES OR
PROPAGATE EXISTING FRACTURES IN THE INJECTION ZONE, INITIATE FRACTURES
IN THE CONFINING ZONE OR OTHERWISE CAUSE THE MIGRATION OF HAZARDOUS
WASTE, HAZARDOUS WASTE CONSTITUENTS, OR FORMATION FLUIDS INTO AN
UNDERGROUND SOURCE OF DRINKING WATER.
FOR DISPOSAL OF HAZARDOUS WASTE BY UNDERGROUND INJECTION THE OWNER OR
OPERATOR MUST, IN ADDITION TO THE WASTE ANALYSES REQUIRED BY SECTION
265.13;
(A) CONDUCT WASTE ANALYSES AND TRIAL TESTS; OR
(B) PRESENT WRITTEN, DOCUMENTED INFORMATION FROM HIS OR SIMILAR
DISPOSAL OPERATIONS TO SHOW THAT THIS DISPOSAL WILL COMPLY WITH SECTION
265.17 (B) AND FOR CLASS I WELLS, THAT THE WASTE IS COMPATIBLE WITH
FLUIDS IN THE INJECTION ZONE AND MINERALS IN BOTH THE INJECTION ZONE AND
THE CONFINING ZONE AND WILL NOT DAMAGE THE MECHANICAL INTEGRITY OF THE
WELL.
(A) THE OWNER OR OPERATOR OF A FACILITY WHICH DISPOSES OF HAZARDOUS
WASTE BY UNDERGROUND INJECTION INTO A CLASS I WELL MUST:
(1) ON THE EFFECTIVE DATE OF THESE REGULATIONS DEVELOP AND SUBMOT TO
THE REGIONAL ADMINISTRATOR A PLAN FOR A MONITORING PROGRAM CAPABLE OF
DETERMINING COMPLIANCE WITH SECTION 265.432, BY:
(I) DEMONSTRATING THE MECHANICAL INTEGRITY OF THE INJECTION WELL TO
SATISFY SECTION 265.432 (A) AND (B); AND
(II) DEMONSTRATING THAT THE PRESSURE OF THE INJECTED FLUIDS REMAINS
WITHIN ALLOWABLE LIMITS TO SATISFY SECTION 265.432 (D),
(2) THE PLAN TO BE SUBMITTED UNDER PARAGRAPH (A) OF THIS SECTION MUST
SPECIFY:
(I) FOR DEMONSTRATING MECHANICAL INTEGRITY;
(A) THE ANNUAL PRESSURE RANGE TO BE MAINTAINED AND BASIS FOR
DETERMINING IT FOR THE SPECIFIC WELL TUBING, PACKER AND CASING
CHARACTERISTICS AND FOR THE ANTICIPATED INJECTION FLUID TEMPERATURES;
(B) THE DEVICES AND PROCEDURES FOR CONTINUOUS MONITORING AND
RECORDING OF THE ANNULAR PRESSURE, AND EVALUATION OF THAT INFORMATION;
AND
(C) PROCEDURES FOR IMMEDIATE RESPONSE TO CHANGES IN THE ANNULAR
PRESSURE OUTSIDE THE ALLOWABLE RANGE, AND FOR RESTORATION OF MECHANICAL
INTEGRITY;
(II) FOR DEMONSTRATING THAT INJECTION FLUID PRESSURE REMAINS WITHIN
ALLOWABLE LIMITS;
(A) THE CALCULATED FRACTURE PRESSURE AND THE BASIS FOR DETERMINING IT
FOR THE SPECIFIC FORMATION AND ZONE OF INJECTION;
(B) THE CALCULATED ALLOWABLE INJECTION PRESSURE TO BE MEASURED
AT THE WELL HEAD AND THE BASIS FOR DETERMINING IT FOR SPECIFIC
INJECTION FLUID CHARACTERISTICS (I.E., SPECIC GRAVITY, VISCOSITY
AND TEMPERATURE);
(C) THE TECHNIQUES AND PROCEDURES FOR CONTINUOUS MONITORING AND
RECORDING OF THE INJECTION PRESSURE AT THE WELL HEAD, FOR EVALUATION OF
THAT INFORMATION; AND
(D) PROCEDURES FOR IMMEDIATE RESPONSE TO AN INCREASE IN THE WELL HEAD
PRESSURE ABOVE THE ALLOWABLE LIMIT, TO RESTORE PRESSURE TO WITHIN
ALLOWABLE LIMITS.
(3) ON THE EFFECTIVE DATE OF THESE REGULATIONS THE OWNER OR OPERATOR
MUST IMPLEMENT THE MONITORING PLAN WHICH SATISFIES PARAGRAPH (A) (2) OF
THIS SECTION AND DETERMINE THE MECHANICAL INTEGRITY OF THE WELL AND THE
INJECTION ZONE PRESSURE.
(4) THE OWNER OR OPERATOR MUST KEEP RECORDS OF THE MONITORING DATA
AND EVALUATIONS SPECIFIED IN PARAGRAPHS (A) (2) (I) AND (II) OF
THISSECTION THROUGHOUT THE ACTIVE LIFE OF THE FACILITY.
(5) THE OWNER OR OPERATOR MUST SUBMIT AN ANNUAL REPORT TO THE
REGIONAL ADMINISTRATOR WHICH ASSURES COMPLIANCE WITH SECTION 265.432.
HE MUST SEPARATELY IDENTIFY IN THE ANNUAL REPORT THOSE CORRECTIVE
ACTIONS, SPECIFIED IN PARAGRAPHS (A) (2) (I) (C) AND (A) (2) (II) (D) OF
THIS SECTION WHICH WERE IMPLEMENTED DURING THE REPORTING PERIOD, AND AN
EXPLANATION OF THE CIRCUMSTANCES WHICH REQUIRED CORRECTIVE ACTION.
(B) THE OWNER OR OPERATOR OF A FACILITY WHICH DISPOSES OF HAZARDOUS
WASTE BY UNDERGROUND INJECTION INTO CLASS IV WELL WHICH DISCHARGES ABOVE
ANUNDERGROUND SOURCE OF DRINKING WATER MUST MONITOR THE GROUND WATER IN
ACCORDANCE WITH THE REQUIREMENTS OF SUBPART F OF THIS PART.
(A) THE OWNER OR OPERATOR MUST CLOSE HIS FACILITY IN A MANNER THAT:
FEDERAL REGISTER, PART 9, VOLUME 45 NUMBER 98, 800519
EPA HAZARDOUS WASTE MANAGEMENT SYSTEM, PROPOSAL TO MODIFY 40 CFR PART 265, SUBPART R, UNDERGROUND INJECTIONS, PROPOSED RULES
FRL 1447-1
PART 007 0F 8
COSTLE D M ADMINISTRATOR
EPA
113497
REGULATIONS
(1) WILL PREVENT THE MIGRATION OF HAZARDOUS WASTE OR HAZARDOUS WASTE
CONSTITUENTS INTO OR BETWEEN UNDERGROUND SOURCES OF DRINKING WATER VIA
THE WELL STRUCTURE; AND
(2) WILL MINIMIZE THE NEED FOR FURTHER MAINTENANCE TO PROTECT HUMAN
HEALTH AND THE ENVIRONMENT.
(B) ON THE EFFECTIVE DATE OF THESE REGULATIONS, THE OWNER OR OPERATOR
MUST HAVE A WRITTEN CLOSURE PLAN. HE MUST KEEP THIS PLAN AT THE
FACILITY. THIS PLAN MUST IDENTIFY THE STEPS NECESSARY TO COMPLETELY
CLOSE THE FACILITY. THE CLOSURE PLAN MUST:
(1) IDENTIFY THE TECHNIQUES TO BE USED TO CLOSE THE WELL IN
ACCORDANCE WITH PARAGRAPHS (C) AND (D) OF THIS SECTION;
(2) DESCRIBE THE STEPS WHICH ARE NECESSARY TO DECONTAMINATE FACILITY
EQUIPMENT DURING CLOSURE; AND
(3) INCLUDE A SCHEDULE FOR FINAL CLOSURE WHICH SPECIFIES THE
ANTICIPATED DATE WHEN WASTES WILL NO LONGER BE RECEIVED,, THE
ANTICIPATED DATE WHEN FINAL CLOSURE WILL BE COMPLETED, AND INTERVENING
MILESTONE DATES FOR TRACKING THE PROGRESS OF CLOSURE.
(C) THE OWNER OR OPERATOR MAY AMEND HIS CLOSURE PLAN AT ANY TIME
DURING THE ACTIVE LIFE OF THE FACILITY. THE OWNER OR OPERATOR MUST
AMEND HIS PLAN ANY TIME CHANGES IN OPERATING PLANS OR FACILITY DESIGN
AFFECT THE CLOSURE PLAN.
(D) THE OWNER OR OPERATOR MUST SUBMIT HIS CLOSURE PLAN TO THE
REGIONAL ADMINISTRATOR AT LEAST 180 DAYS BEFORE THE DATE HE EXPECTS TO
BEGIN CLOSURE. THE REGIONAL ADMINISTRATOR WILL MODIFY, APPROVE, OR
DISAPPROVE THE PLAN WITHIN 90 DAYS OF RECEIPT AND AFTER PROVIDING THE
OWNER OR OPERATOR AND THE AFFECTED PUBLIC (THROUGH A NEWSPAPER NOTICE)
THE OPPORTUNITY TO SUBMIT WRITTEN COMMENTS. IF AN OWNER OR OPERATOR
PLANS TO BEGIN CLOSURE WITHIN 180 DAYS AFTER THE EFFECTIVE DATE OF THESE
REGULATIONS, HE MUST SUBMIT THE NECESSARY PLANS ON THE EFFECTIVE DATE OF
THESE REGULATIONS.
(E) WITHIN 90 DAYS AFTER RECEIVING THE FINAL VOLUME OF HAZARDOUS
WASTES, THE OWNER OR OPERATOR MUST TREAT ALL HAZARDOUS WASTES IN STORAGE
OR IN TREATMENT, OR REMOVE THEM FROM THE SITE, OR DISPOSE OF THEM
ON-SITE, IN ACCORDANCE WITH THE APPROVED CLOSURE PLAN.
(F) THE OWNER OR OPERATOR MUST COMPLETE CLOSURE ACTIVITIES IN
ACCORDANCE WITH THE APPROVED CLOSURE PLAN AND WITHIN SIX MONTHS AFTER
RECEIVING THE FINAL VOLUME OF WASTES. THE REGIONAL ADMINISTRATOR MAY
APPROVE A LONGER CLOSURE PERIOD UNDER PARAGRAPH (D) OF THIS SECTION IF
THE OWNER OR OPERATOR CAN DEMONSTRATE THAT:
(1) THE REQUIRED OR PLANNED CLOSURE ACTIVITIES WILL, OF NECESSITY,
TAKE HIM LONGER THAN SIX MONTHS TO COMPLETE, AND
(2) THAT HE HAS TAKEN ALL STEPS TO ELIMINATE ANY SIGNIFICANT THREAT
TO HUMAN HEALTH AND THE ENVIRONMENT FROM THE UNCLOSED BUT INACTIVE
FACILITY.
(G) THE OWNER OR OPERATOR OF A CLASS I WELL MUST CLOSE BY PLUGGING TO
SATISFY PARAGRAPH (A) OF THIS SECTION.
(H) AT CLOSURE, THE OWNER OR OPERATOR OF A CLASS IV WELL WHICH
DISCHARGES ABOVE AN UNDERGROUND SOURCE OF DRINKING WATER MUST;
(1) REMOVE THE HAZARDOUS WASTE REMAINING IN THE WELL; AND
(2) CLOSE THE WELL IN A MANNER WHICH SATISFIES PARAGRAPH (A) OF THIS
SECTION.
(COMMENT: AT CLOSURE, AS THROUGHOUT THE OPERATING PERIOD, UNLESS THE
OWNER OR OPERATOR CAN DEMONSTRATE, IN ACCORDANCE WITH SECTION 261.3 (C)
OR (D) OF THIS CHAPTER, THAT ANY SOLID WASTE REMOVED FROM THE INJECTION
WELL IS NOT A HAZARDOUS WASTE HE BECOMES A GENERATOR OF HAZARDOUS WASTE
AND MUST MANAGE IT IN ACCORDANCE WITH ALL APPLICABLE REQUIREMENTS OF
PARTS 262, 263, AND 265 OF THIS CHAPTER.)
(I) WHEN CLOSURE IS COMPLETED, THE OWNER OR OPERATOR MUST SUBMIT TO
THE REGIONAL ADMINISTRATOR CERTIFICATION BOTH BY THE OWNER OR OPERATOR
AND BY AN INDEPENDENT REGISTERED PROFESSIONAL ENGINEER THAT THE FACILITY
HAS BEEN CLOSED IN ACCORDANCE WITH THE SPECIFICATIONS IN THE APPROVED
CLOSURE PLAN.
(J) THE OWNER OR OPERATOR OF A CLASS IV WELL WHICH DISCHARGES ABOVE
AN UNDERGROUND SOURCE OF DRINKING WATER MUST PROVIDE POST-CLOSURE CARE
IN ACCORDANCE WITH THE APPLICABLE REQUIREMENTS OF SECTIONS 265.117 -
265.120 (SEE SUBPART G OF THIS PART).
(A) ON THE EFFECTIVE DATE OF THESE REGULATIONS, THE OWNER OR OPERATOR
OF A FACILITY WHICH DISPOSES OF HAZARDOUS WASTE BY UNDERGROUND INJECTION
MUST HAVE A WRITTEN ESTIMATE OF THE COST OF CLOSING THE FACILITY IN
ACCORDANCE WITH THE REQUIREMENTS IN SECTION 265.435. THE OWNER OR
OPERATOR MUST KEEP THIS ESTIMATE AND ALL SUBSEQUENT ESTIMATES REQUIRED
IN THIS SECTION, AT THE FACILITY.
(B) THE OWNER OR OPERATOR MUST PREPARE A NEW CLOSURE COST ESTIMATE
WHENEVER A CHANGE IN THE CLOSURE PLAN AFFECTS THE COST OF CLOSURE.
(C) THE OWNER OR OPERATOR MUST MAINTAIN FINANCIAL RESPONSIBILITY IN
THE FORM OF PERFORMANCE BONDS OR OTHER EQUIVALENT FORM OF FINANCIAL
ASSURANCE TO CLOSE A FACILITY WHICH DISPOSES OF HAZARDOUS WASTE BY
UNDERGROUND INJECTION. IN LIEU OF INDIVIDUAL PERFORMANCE BONDS, OWNERS
OR OPERATORS MAY FURNISH A BOND OR OTHER EQUIVALENT FORM OF FINANCIAL
GUARANTEE COVERING ALL FACILITIES WHICH DISPOSE OF HAZARDOUS WASTE BY
UNDERGROUND INJECTION IN ANY ONE STATE.
(D) ON THE EFFECTIVE DATE OF THESE REGULATIONS AN OWNER OR OPERATOR
OF A FACILITY WHICH DISPOSES OF HAZARDOUS WASTE BY UNDERGROUND INJECTION
IN A CLASS IV WELL WHICH DISCHARGES ABOVE UNDERGROUND SOURCES OF
DRINKING WATER MUST HAVE A WRITTEN ESTIMATE OF THE ANNUAL COST OF
POST-CLOSURE MONITORING AND MAINTENANCE IN ACCORDANCE WITH THE
APPLICABLE POST-CLOSURE REQUIREMENTS IN SECTIONS 265.117 - 265.120.
THIS ESTIMATE AND ALL SUBSEQUENT ESTIMATES, MUST BE KEPT AT THE
FACILITY.
(E) THE COST ESTIMATE REQUIRED IN PARAGRAPH (D) OF THIS SECTION MUST
BE REVISED WHENEVER A CHANGE IN THE POST-CLOSURE CARE PLAN AFFECTS THE
COST OF POST-CLOSURE CARE (SEE SECTION 265.118 (B)). THE LATEST
POST-CLOSURE COST ESTIMATE IS CALCULATED BY MULTIPLYING THE LATEST
ANNUAL POST-CLOSURE COST ESTIMATE BY 30.
(F) ON EACH ANNIVERSARY OF THE EFFECTIVE DATE OF THESE REGULATIONS,
THE OWNER OR OPERATOR MUST ADJUST THE LATEST POST-CLOSURE COST
ESTIMATBSING AN INFLATION FACTOR DERIVED FROM THE ANNUAL IMPLICIT PRICE
DEFLATOR FOR GROSS NATIONAL PRODUCT AS PUBLISHED BY THE U.S. DEPARTMENT
OF COMMERCE IN ITS SURVEY OF CURRENT BUSINESS. THE INFLATION FACTOR
MUST BE CALCULATED BY DIVIDING THE LATEST ANNUAL PUBLISHED DEFLATOR BY
THE DEFLATOR FOR THE PREVIOUS YEAR. THE RESULT IS THE INFLATION FACTOR.
THE ADJUSTED POST-CLOSURE COST ESTIMATE MUST EQUAL THE LATEST
POST-CLOSURE COST ESTIMATE TIMES THE INFLATION FACTOR.
IGNITABLE, REACTIVE OR INCOMPATIBLE WASTES (SEE APPENDIX V FOR
EXAMPLES) MUST NOT BE DISPOSED BY UNDERGROUND INJECTION UNLESS SECTION
265.17 (B) IS SATISFIED.
(FR DOC. 80-14310 FILED 5-16-80; 8:45 AM)
BILLING CODE 6560-01-M
FEDERAL REGISTER, PART 9, VOLUME 45 NUMBER 98, 800519
EPA HAZARDOUS WASTE MANAGEMENT SYSTEM, PROPOSAL TO MODIFY 40 CFR PART 265, SUBPART R, UNDERGROUND INJECTIONS, PROPOSED RULES
FRL 1447-1
PART 008 0F 8
COSTLE D M ADMINISTRATOR
EPA
113498
REGULATIONS
ADVERTISEMENT OMITTED
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 001 OF 225
COSTLE DM ADMINISTRATOR
EPA
113500
REGULATIONS
TITLE PAGE OMITTED.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 002 OF 225
COSTLE DM ADMINISTRATOR
EPA
113501
REGULATIONS
CONSOLIDATED PERMIT REGULATIONS: RCRA HAZARDOUS WASTE; SDWA
UNDERGROUND INJECTION CONTROL; CWA NATIONAL POLLUTANT DISCHARGE
ELIMINATION SYSTEM; CWA SECTION 404 DREDGE OR FILL PROGRAMS; AND CAA
PREVENTION OF SIGNIFICNT DETERIORATION
ACTION: FINAL RULE.
SUMMARY: THIS RULE ESTABLISHES CONSOLIDATED PERMIT PROGRAM
REQUIREMENTS GOVERNING THE HAZARDOUS WASTE MANAGEMENT PROGRAM UNDER THE
RESOURCE CONSERVATION AND RECOVERY ACT (RCRA), THE UNDERGROND INJECTION
CONTROL (UIC) PROGRAM UNDER THE SAFE DRINKING WATER ACT (SDWA), THE
NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM (NPDES) PROGRAM AND
STATE DREDGE OR FILL ("404") PROGRAMS UNDER THE CLEAN WATER ACT (CWA),
AND THE PREVENTION OF SIGNIFICANT DETERIORATION (PSD) PROGRAM UNDER THE
CLEAN AIR ACT, FOR THREE PRIMARY PURPOSES:
(1) TO CONSLIDATE PROGRAM REQUIREMENTS FOR THE RCRA AND UIC PROGRAMS
WITH THOSE ALREADY ESTABLISHED FOR THE NPDES PROGRAM.
(2) TO ESTABLISH REQUIREMENTS FOR STATE PROGRAMS UNDER THE RCRA, UIC,
AND SECTION 404 PROGRAMS.
(3) TO CONSOLIDATE PERMIT ISSUANCE PROCEDURES FOR EPA-ISSUED
PREVENTION OF SIGNFICANT DETERIORATION PERMITS UNDER THE CLEAN AIR ACT
WITH THOSE FOR THE RCRA, UIC, AND NPDES PROGRAMS.
DATES: THESE REGULATIONS SHALL BECOME EFFECTIVE AS FOLLOWS: ALL
REGULATIONS SHALL BECOME EFFECTIVE AS TO UIC PERMITS AND PROGRAMS JULY
18, 1980, BUT SHALL NOT BE IMPLEMENTED UNTIL THE EFFECTIVE DATE OF 40
CFR PART 146. ALL REGULATIONS SHALL BECOME EFFECTIVE AS TO RCRA PERMITS
AND PROGRAMS NOVEMBER 19, 1980. PART 124 SHALL BECOME EFFECTIVE AS
SPECIFIED IN SECTION 124.21. ALL OTHER PROVISIONS OF THE REGULATIONS
SHALL BECOME EFFECTIVE JULY 18,1980. FOR PUROPOSES OF JUDICIAL REVIEW
UNDER THE CLEAN WATER ACT, THSE REGULATIONS WILL BE CONSIDERED ISSUED AT
1 P.M. EASTERN TIME ON JUNE 2, 1980; SEE 45 FR 26894, APRIL 22, 1980.
IN ORDER TO ASSIST EPA TO CORRECT TYPOGRAPHICAL ERRORS, INCORRECT
CROSS-REFERENCES, AND SIMILAR TECHNICAL ERRORS, COMMENTS OF A TECHNICAL
AND NONSUBSTANTIVE NATURE ON THE FINAL REGUALTIONS MAY BE SUBMITTED ON
OR BEFORE JULY 18, 1980. THE EFFECTIVE DATE WILL NOT BE DELAYED BY
CONSIDERATION OF SUCH COMMENTS.
COMMENTS ON THE SCOPE AND APPLICABILITY OF EXECUTIVE ORDER 11990 AND
EXECUTIVE ORDER 11988 TO RCRA, UIC, AND NPDES PERMITS MUST BE SUBMITTED
ON OR BEFORE JULY 19, 1980.
COMMENTS ON REQUIREMENTS FOR CLASS IV WELLS MUST BE RECEIVED BY JULY
15, 1980.
THERE WILL BE A= HEARING ON THE REQUIREMENTS FOR CLASS IV WELLS ON
JULY 8, 1980, FROM 9 A.M. TO 5 P.M.
ADDRESSES: COMMNETS OF A TECHNICAL AND NONSUBSTANTIVE NATURE, AS
WELL AS THE COMMENTS CONCERNING TEH SCOPE AND APPLICABILITY OF EXECUTIVE
ORDER 11990 AND EXECUTIVE ORDER 11988, SHOULD BE ADDRESSED TO: EDWARD
A. KRAMER, OFFICE OF WATER ENFORCEMENT (EN-336), U.S. ENVIRONMENTAL
PROTECTION AGENCY, WASHINGTON, D.C. 20460.
COMMENTS ON REQUIREMENTS FOR CLASS IV WELLS SHOULD BE ADDRESSED TO:
ALAN LEVIN, DIRECTOR, STATE PROGRAM DIVISION (WH-550), OFFICE OF
DRINKING WATER, ENVIRONMENTAL PROTECTION AGENCY, WASHINGTON, D.C. 20460.
THE PUBLIC HEARING ON CLASS IV WELLS WILL BE HELD AT: HEW
AUDITORIUM, 330 INDEPENDENCE AVENUE, S.W., WASHINGTON, D.C.
FOR FURTHER INFORMATION CONTACT: EDWARD A. KRAMER, OFFICE OF WATER
ENFORCEMENT (EN-336), U.S. ENVIRONMENTAL PROTECTION AGENCY, WASHINGTON,
D.C. 20460, (202)755-0750.
THESE FINAL REGULATIONS CONSOLIDATE REQUIREMENTS AND PROCEDURES FOR
FIVE EPA PERMIT PROGRAMS. THSE REGULATIONS REPRESENT THE MAJOR PRODUCT
OF THE AGENCY'S PERMIT CONSOLIDATION INITIATIVE THAT BEGAN IN THE FALL
OF 1978. THEY ARE BASED ON THE PROPOSED CONSOLIDATED PERMIT REGULATIONS
THAT WERE PUBLISHED IN THE FEDERAL REGISTER FOR COMMENT ON JUNE 14, 1979
(44 FR 32854).
EPA PROGRAM REQUIREMENTS AND STATE PROGRAM REQUIREMENTS ARE
ESTABLISHED FOR THREE PROGRAMS:
THE HAZARDOUS WATE MANAGEMENT (HWM) PROGRAM UNDER THE RESOURCE
CONSERVATION AND RECOVERY ACT (RCRA);
THE UNDERGROUND INJECTION CONTROL (UIC) PROGRAM UNDER THE SAFE
DRINKING WATER ACT (SDWA);
THE NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM (NPDES) PROGRAM
UNDER THE CLEAN WATER ACT (CWA); AND
STATE PROGRAM REQUIREMENTS ONLY ARE ESTABLISHED FOR:
STATE SECTION 404 "DREDGE OR FILL" PROGRAMS UNDER THE CWA.
IN ADDITION, PROCEDURES FOR PERMIT DECISIONMAKING ARE ESTABLISHED FOR
THE ABOVE FOUR PROGRAMS, AND FOR
THE PREVENTION OF SIGNIFICANT DETERIORATION (PDS) PROGRAM UNDER THE
CLEAN AIR ACT, WHERE THIS PROGRAM IS OPERATED BY EPA OR A DELEGATED
STATE AGENCY UNDER 40 CFR 52.21(V); THESE PROCEDURES DO NOT APPLY TO
PSD PERMITS ISSUED BY STATES TO WHOM ADMINISTRATION OF THE PSD PROGRAM
HAS BEEN TRANSFERRED. (SEE PREAMBLE TO PART 124, SUBPART C.)
THESE REGULATIONS ARE AN IMPORTANT ELEMENT OF AN AGENCY-WIDE EFFORT
TO CONSOLIDATE AND UNIFY PROCEDURES AND REQUIREMENTS APPLICABLE TO EPA
AND STATE-ADMINISTERED PERMIT PROGRAMS.
THE AGENCY HAS ALSO DEVELOPED A SINGLE ST OF PERMIT APPLICATION FORMS
FOR THE PROGRAMS COVERED BY THESE REGULATIONS. THESE CONSOLIDATED
APPLICATION FORMS ARE PUBLISHED ELSEWHERE IN TODAY'S FEDERAL REGISTER.
THEY CONSIST OF A SINGLE GENERALFORM TO COLLECT BASIC INFORMATION FROM
ALL APPLICANTS, FOLLOWED BY SEPARATE PROGRAM SPECIFIC FORMS WHICH
COLLECT ADDITIONAL INFORMATION NEEDED TO ISSUE PERMITS UNDER EACH
PROGRAM. THE APPLICATION FORMS IN TODAY'S FEDERAL REGISTER INCLUDE THE
GENERAL INFORMATION FORM AND THE ADDITIONAL FORMS FOR CERTAIN WATER
DISCHARGES UNDER NPDES AND FOR HAZARDOUS WASTE PERMITS UNDER RCRA.
WHEN THE DRAFT CONSOLIDATED APPLICATION FORMS WERE PUBLISHED FOR
PUBLIC COMMENT, THEY APPEARED ALONG WITH A SET OF PROPOSED NPDES
REGULATIONS WHICH WERE CLOSELY RELATEDTO THE CONTENTS OF THE APPLICATION
FORMS. THOSE ACCOMPANYING REGUALTIONS HAVE NOW BEEN INTEGRATED WITH THE
FINAL NPDES REGULATIONS WHICH APPEAR AS PART OF THESE CONSOLIDATED
PERMIT REGULATIONS, AND ARE SUMMARIZED IN THE PROPER PLACES IN THE
PREAMBLE DISCU-SION. FOR A MORE THOROUGH DISCUSSIONAND RESPONSE TO
COMMENTS ON THOSE PORTIONS OF THE NPDES REGULATIONS, SEE THE PREAMBLE TO
THE CONSOLIDATED APPLICATION FORMS. PUBLISHED ELSEWHERE IN TODAY'S
FEDERAL REGISTER. BECAUSE THE DRAFT APPLICATION FORMS AND ACCOMPANYING
PROPOSED NPDES REGULATIONS WERE ORIGINALLY PUBLISHED TOGETHER, COMMENTED
UPON TOGETHER, AND ARE CLOSLEY RELATED, THE DETAILED DISCUSSION OF BOTH
FORMS AND ACCOMPANYING REGULATIONS HAS BEEN RETAINED ONE PLACE.
MANY OF THE REQUIREMENTS IN THESE REGULATIONS APPLY BOTH TO EPA
PROGRAMS AND TO STATE PROGRAMS THAT RECEIVE EPA APPROVAL TO OPERATE IN
LIEU OF A FEDERAL PROGRAM IN A PARTICULAR STATE. THESE COMMON
REQUIREMENTS ARE INTENDED TO ENSURE THATSTATE PERMIT PRGRAMS SATISFY
MINIMUM STATUTORY AND ENVIRONMENTAL OBJECTIVES, WHILE AT THE SAME TIME
RECOGNIZING THAT STATE LAWS, PROCEDURES, AND MANAGEMENT PHILOSOPHIES
DIFFER, EPA ALSO SEEKS IN THESE REGULATIONS TO HELP STATES RATIONALIZE
THEIR OWN REGULATORY PROGRAMS BY REMOVING OR AVOIDING FEDERAL OBSTACLES
TO SUCH EFFORTS.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 003 OF 225
COSTLE DM ADMINISTRATOR
EPA
113502
REGULATIONS
THESE REGULATIONS ALLOW GREATER COORDINATION AND
COORDINATION AND COOPEATION IN PERMIT REVIEW AND ISSUANCE
BETWEEN EPA AND STATES WITH APPROVED RCRA, UIC, NPDES, 404,
ORPDS PROGRAMS IN INSTANCES WHERE A SINGLE FACILITY OR ACTIVITY
REQUIRES PERMITS FROM BOTH EPA AND ONE OR MORE STATE AGENCIES.
ALTHOUGH NOTHING IN THESE REGULATIONS WOULD REQUIRE A STATE TO
REORGANIZE ITS PERMITTING PROCEDURES, EPA ENCOURAGES STATES TO BEGIN OR
CONTINUE EFFORTS TOWARD "ONE-STOP" PERMITTING OR OTHER FORMS OF PERMIT
PROGRAM CONSOLIDATION.
THE AGENCY ANTICIPATES A NUMBER OF BENEFITS TO THE ENVIRONMENT, THE
REGULATED COMMUNITY, THE GENERAL PUBLIC, AND ITS OWN INSTITUTIONAL
EFFICIENCY FROM PERMITS CONSOLIDATION:
ENVIRONMENTAL BENEFITS: CONSOLIDATION OF PERMIT REQUIREMENTS AND
PROCESSING PROCEDURES SHOULD RESULT IN MORE COMPREHENSIVE MANAGEMENT AND
CONTROL OF WASTES.
REGULATORY BENEFITS: MORE UNIFORM PROCEDURES AND PERMIT REQUIREMENTS
AMONG EPA PERMIT PROGRAMS SHOULD RESULT IN MORE CONSISTENCY AND
PREDICTABILITY FOR THE REGULATED COMMUNITY, AND IN MANY INSTANCES THIS
SHOULD REDUCE THE COSTS OF COMPLIANCE, CONSISTENT PROGRAM REQUIREMENTS
AND A SINGLE SET OF APPLICATION FORMS FOR EPA-ISSUED PERMITS SHOULD
REDUCE PAPERWORK AND INCRASE EFFICIENCY IN PROCESSING PERMITS.
INSTITUTIONAL BENEFITS: THE AGENCY HAS ALREADY EXPERIENCED GREATER
COORDINATION, SHARING OF INFORMATION, AND RESOLUTION OF INCONSISTENCIES
AND OVERLAPS AMONG THE VARIOUS PROGRAMS DURING THE DEVELOPMENT OF THESE
REGULATIONS. THIS HIGH LEVEL OF COORDIANTIONAND AWARENESS IS EXPECTED
TO CONTINUE.
PUBLIC PARTICIPATION BENEFITS: PROCEDURES AND OPPORTUNITIES FOR
PUBLIC PARTICIPATION IN PERMIT DECISIONS AND IN STATE PROGRAM APPROVALS
ARE MORE UNIFORM AND PREDICTABLE UNDER THESE REGULATIONS.
RESOURCE BENEFITS: CONSOLIDATING THSE PERMIT PROGRAMS SHOULD REDUCE
THE RESOURCES EPA NEEDS TO ADMINISTER THEM OVER THE NEXT FEW YEARS,
COMPARED WITH WHAT THE EXPANDING SCOPE OF EPA PERMIT PROGRAMS WOULD
OTHERWISE REQUIRE. CONSISTENT PROGRAM REQUIREMENTS AND USE OF THE
CONSOLIDATED APPLICATOIN FORMS SHOULD BE PARTICULARLY HELPFUL IN
STARTING UP AND ADMINISTERING THE TWO NEW PROGRAMS (RCRA HAZARDOUS WASTE
AND UIC) COVERED BY THESE REGULATIONS. IF STATES ADOPT SIMILAR
APPROACHES, RESOURCE BENEFITS, COULD ALSO BE REALIZED AT THE STATE
LEVEL.
THE FINAL REGULATIONS REPLACE 40 CFR PARTS 122, 123, AND 124, WHICH
WERE FORMERLY USED EXCLUSIVELY FOR NPDES PROGRAM REGULATIONS. THESE
PARTS OF THE CODE OF FEDERAL REGULATIONS ARE BEING USED BECAUSE THEY
ALREADY PROVIDE THE SKELETON FOR ORGANIZING PERMIT REGULATIONS, NAMELY:
PART 122 -- PERMIT REQUIREMENTS.
PART 123 -- STATE PROGRAM REQUIREMENTS.
PART 124 -- PROCEDURES FOR DECISIONMAKING.
PARTS 122, 123, AND 124 HAVE BEEN ORGANIZED INTO SUBPARTS, SUBPART A
OF EACH PART APPLIES TO EACH PERMIT PROGRAM INCLUDED IN THE PART.
SUBSEQUENT SUBPARTS SET FORTH ADDITINAL PROGRAM SPECIFIC REQUIREMENTS
FOR THE INDIVIDUAL PROGRAMS.
ALTHOGH THE AGENCY HAS ATTEMPTED TO UNIFY THESE REGULATIONS STATUTORY
AND PROGRAMMATIC CONSIDERATIONS PRECLUDE COMPLETE UNIFORMITY. THSU, TO
REVIEW THE REGULATIONS FOR A PARTICULAR PROGRAM, ONE MUST READ BOTH THE
GENERAL SUBPART A PLUS ANY APPLICABLE PROGRAM-SPECIFIC SUBPART.
PART 122 -- ESTABLISHED DEFINITIONS AND BASIC PERMIT REQUIREMENTS FOR
EPA ADMINISTERED RCRA, UIC, AND NPDES PROGRAMS. PART 122 ALSO PROVIDES
CERTAIN REQUIREMENTS APPLICABLE TO STATE PROGRAMS, INCLUDING STATE 404
PROGRAMS, BUT ONLY TO THE EXTENT PART 123 EXPLICITLY REFERS TO PART 122
REQUIREMENTS. PART 122 SPELLS OUT IN DETAIL WHO MUST APPLY FOR A
PERMIT; CONTENTS OF TEH APPLICATIONS; WHAT CONDITIONS MUST BE
INCORPORATED INTO PERMITS WHEN PERMITS MAY BE REVISED, REISSUED, OR
TERMINATED; AND OTHER REQUIREMENTS.
PART 123 -- ESTABLISHES THE REQUIREMENTS FOR STATE PROGRAMS OPERATED
IN LIEU OFEPA, AFTERA PROGRAM HAS RECEIVED THE APPROVAL OF THE
ADMINISTRATOR. IN ADDITION TO THE RCRA HAZARDOUS WASTE, UIC, AND NPDES
PROGRMS, PART 123 GOVERNS STATE SECTION 404 PROGRAMS, FOR DISCHARGES OF
DREDGED OR FILL MATERIAL INTO CERTAIN WATERS OF THC UNITED STATES.
AFTER RECEIVING THE APPROVAL OF THE ADMINISTRAOTR A STATE MAY ISSUE
SECTION 404 PERMITS, IN LIEU OF THE UNITED STATES ARMY CORPS OF
ENGINEERS, SO-CALLED "PHASE II AND III" WATERS (SOMETIMES REFERRED TO AS
TRADITIONALLY NON-NAVIGABLE WATERS), IN ADDITION, PART 123 CONTAINS THE
PROCEDURES FOR EPA APPROVAL, REVISION,AND WITHDRAWAL OF A STATE PROGRAM.
PART 124 -- ESTABLISHES THE PROCEDURES TO BE FOLLOWED IN MAKING
PERMIT DECISIONS UNDER THE RCRA HAZARDOUS WASTE, UIC, PSD, AND NPDES
PROGRAMS. IT INCLUDES PROCEDURES FOR PUBLIC PARTICIPATION, FOR
CONSOLIDATED REVIEW AND ISSUANCE OF TWO MORE PERMITS TO THE SAME
FACILITY OR ACTIVITY, AND FOR APPEALING PERMIT DECISIONS. MOST
REQUIREMETNS IN PART 124 ARE ONLY APPLICABLE WHERE EPA IS THE
PERMIT-ISSUING AUTHORITY. HOWEVER, PART 123 REQUIRES STATES TO COMPLY
WITH SOME OF THE PART 124 PROVISIONS, SUCH AS THE BASIC PUBLIC
PARTICIPATION REQUIREMENTS OF PERMIT ISSUANCE.
TECHNICAL REGULATIONS CONTAINING REQUIREMENTS AND CRITERIA WHICH
APPLY TO DECISIONMAKING UNDER THE RCRA, UIC, NPDES, 404, AND PSD
PROGRAMS HAVE BEEN DEVELOPED DEPARATELY FROM PARTS 122-124. THESE
REGULATIONS SET THE STANDARDS FOR THE CONTENTS OF PERMITS ISSUD UNDER
THESE PROGRAMS AND PROVIDE SOME OF THE TECHNICAL BASES FOR DETRMINING
THE ADEQUACY OF STATE PROGRAMS AND INDIVIDUAL PERMIT DECISIONS.
THE COVERAGE AND FORMAT OF THE CONSLIDATED PERMIT RGULATIONS AND THE
LOCATION OF THE TECHNICAL REGULATIONS WHICH CORRESPOND TO EACH PROGRAM,
ARE SUMMARIZED IN THE FOLLOWING CHART:
BILLING CODE 6560-01-M
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 004 OF 225
COSTLE DM ADMINISTRATOR
EPA
113503
REGULATIONS
TABLE I: COVERAGE AND FORMAT
TABLE OMITTED
BILLING CODE 6560-01-C
A. WHAT DOES THIS PART DO?
(1) COVERAGE. SUBPART A OF PART 122 DEALS WITH EPA ADMINISTRATION OF
THE RCRA HAZARDOUS WASTE, UIC, AND NPDES PROGRAMS. FIRST, IR PROVIDES
DEFINITIONS FOR TERMS USED IN THESE REGULATIONS. SECOND, SUBPART A
CONTAINS BASIC PROGRAM REQUIRMENTS APPLICABLE TO EPA ADMINISTRATION OF
THESE THREE PROGRAMS, SUCH AS APPLICATION REQUIREMENTS, STANDARD PERMIT
CONDITIONS,D GROUNDS FOR MODIFICATION AND TERMINATION OF PERMITS.
SUBPARTS B THROUGH D OF PART 122 DESCRIBE ADDITIONAL PROGRAM ELEMENTS OF
THESE THREE PROGRAMS. SUBPART B IS SPECIFIC TO RCRA HAZARDOUS WASTE,
SUBPART C TO UIC, AND SUBPART D TO NPDES. THE READER MUST CONSULT BOTH
THE GENERAL SUBPART A AND THE APPROPRIATE PROGRAM-SPECIFCI SUBPART B, C,
OR D FOR A FULL DESCRIPTION OF ANY ONE PROGRAM.
CERTAIN OF THE PART 122 PROGRAM REQUIREMENTS ARE APPLICABLE, AS
INDICATED IN SECTION HEADINGS AND IN PART 123, TO STATE RCRA, UIC,
NPDES, OR 404 PROGRAMS WHICH OBTAIN APPROVAL TO OPERATE IN LIEU OF EPA
PROGRAMS (OR, IN THE CASE OF 404 PROGRAMS, IN LIEU OF THE U.S. ARMY
CORPS OF ENGINEERS). IN ADDITION TO THE DEFINITIONS FOR RCRA, UIC, AND
NPDES, SUBPART A OF PART 122 CONTAINS DEFINITIONS USED IN PART 123 FOR
STATE 404 PROGRAMS, BUT NO 404 SUBPART APPEARS IN PART 122 BECAUSE EPA
DOES NOT ISSUE FEDERAL 404 PERMITS.
(2) COMPLEXITY. A LARGE NUMBER OF COMMENTESR ON PROPOSED PART 122,
AND THE CONSLIDATED PERMIT REGULATIONS IN GENERAL, STATED THAT THE
REGULATIONS ARE DIFFICULT TO USE BECUASE OF THEIR COMPLEXITY, LENGTH,
AND NUMEROUS CORSS-REFERENCES BOTH TO OTHER SECTION S OF THESE
REGULATIONS AND TO THE SEPARATE TECHNICAL REGULATIONS.
EPA AGREES THAT THE CONSLIDATED REGULATIONS ARE COMPLEX. MUCH OF
THIS COMPLEXITY IS DUE TO THE FACE THA THE REGULATIONS INCLUDE
PROVISIONS UNDER FIVE PROGRAMS WHICH REGULATE COMPLEX AND DIFFEREING
TYPES OF ACTIVITIES UNDER FOUR DIFFRENT STATUTES. THE CONSOLIDATION OF
REGULATIONS UNDER THESE FIVE PERMIT PROGRAMS MAY NOT MAKE THE
SUBSTANTIVE REQUIREMENTS OF THE FIVE PROGRAMS EASIER TO MEET. HOWEEVER,
WE BELIEVE THAT THESE REGULATIONS ARE LESS COMPLEX THAN THEY WOULD HAVE
BEEN IF ISSUED IN FIVE SETS OF REGULATIONS DEVELOPED IN ISOLATION FROM
EACHOTHER. BE DEVELOPING THE PERMIT REGULATIONS AS A SET,
CONTRADICTIONS, GAPS, AND OVERLAPS AMONG PROGRAMS REQUIREMENTS HAVE BEEN
DETECTED AND MORE EASILY AND COMPLETELY DEALT WITH. IN ADDITIN,
CONSLIDATION HAS AVOIDED MANY DIFFERENCES IN APPROACH THAT ARE NOT
DIRECT CONFLICTS, BUT WHICH STILL ARE UNNECESSARY TO CARRY OUT THE
OBJECTIVES OF THEPROGRAM. THE CONSOLIDATED REGULATIONS MAKE
THEPROVISIONS MORE UNIFORM, AND THEREFORE EASIER TOLEARN AND DEAL WITH
CONCEPTUALLY, BY FAVORING DIFFERENCES ARE NOT REQUIRED BY STATUTORY
OBJECTIVES.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 005 OF 225
COSTLE DM ADMINISTRATOR
EPA
113504
REGULATIONS
IN ADDITION, THESE REGULATIONS ACHIEVE SOME SAVING IN TOTAL LENGTH
BECAUSE PROVISIONS WHICH AREAPPLICABLE TO ALL PROGRAMS ONLY HAVE TO BE
STATED ONCE.
WHILE EPA HAS RETAINED THE IDEA OF CONSOLIDATION AND THE BASIC FORMAT
OF THE PROPOSED REGULATIONS, WE HAVE TAKEN OR WILL BE TAKING A NUMBER OF
STEPS TO TRY TO MAKE THE REGULATIONS EASIER TO USE AND LESS CONFUSING.
FIRST, EPA WILL CONDUCT AN EXTENSIVE PROGRAM FOR PUBLIC AWARENESS
AFTER THE REGULATIONS ARE PROMULGATED. ONE ASPECT OF THIS PROGRAM WILL
BE PREPARING AND DISTRIBUTING REPRINTS OF THE REGULATIONS, WHICH WILL
CONTAIN ONLY THE PARTS OF WHICH WILL CONTAIN ONLY THE PARTS OF THESE
CONSOLIDATED REGULATIONS APPLICABLE TO EACH PROGRAM INDIVIDUALLY. THIS
WILL MAKE IT POSSIBLE FOR A READER INTERESTED IN ONLY ONE PROGRAM TO
FIND OUT ABOUT IT WITHOUT READING ABOUT OTHER PROGRAMS. THSE INDIVIDUAL
PROGRAM REPRINTS MAY BE COMBINED WITH THE SEPARATE "TECHNICAL"
REGULATIONS FOR A PROGRAM, SUCH AS THE PART 146 REGULATIONS FOR UIC, IN
ORDER TO PROVIDE A SINGLE PACKAGE WHICH CONTAINS THE ENTIRE UNIVERSE OF
REGULAT0RY REQUIREMENTS FOR ONE PROGRAM AND THEREBY EASE THE BURDEN OF
PURSUING CROSS-REFERENCES.
IN ADDITION, EPA WILL BE PREPARING A SERIES OF BOOKLTS ON THE
REGULATIONS WRITTEN TO ADDRESS THECONCERN OS PARTICULAR CONSTITUENCEIS
FOR EXAMPLE, ONE SUCH BOOKLET WILL BE SPECIFICALLY ADDRESSED TO FARMERS,
AND ANOTHER ADDRESSED TO PERMIT APPLICANTS IN GENERAL.
SECOND, THE CONSOLIDATED REGULATIONS THEMSELVES HAVE BEEN REDRAFTED
WITH PARTICULAR ATTENTION TO THEIR ORGANIZATION AND THEIR READABILITY.
STEPS THAT EPA HAS TAKEN IN THIS EFFORT INCLUDE THE FOLLOWING:
THE SEQUENCE OF SECTINS WITHIN EACH OF THE SUBPARTS OF PART 122 HAS
BEEN REARRANGED FOR LOGIC AND CONSISTENCY AND TO PROVIDE A DISCERNIBLE
"MAP" FOR PROCEEDING THROUGH THEREGULATIONS. EACH SUBPART OF PART 122
INCLUDES THREE TYPES OF PROVISIONS (1) ORIENTATION MATERIAL SUCH AS THE
PURPOSE AND SCOPE OF EACH PROGRAM, PROHIBITIONS, AND THE CLASSIFICATION
OF INJECTION WELLS (2) THE WAYS IN WHICH ACTIVITIES COVERED BY THE
PROGRAMS ARE AUTHORIZED, EITHER THROUGH APPLICATION FOR A PERMIT OR BY
PERMIT SUBSTITUTES SUCH AS INTERIM AUTHORIZATION OR AUTHORIZATION BY
RULE AND (3) INFORMATION NO HOW CONDITIONS ARE INCORPORATED INTO PERMITS
-- FIRST, THECONDITIONS THAT DO VARY FROM PERMIT TO PERMIT, AND THEN
INFORMATION ON HOW TO CALCULATE OR SPECIFY CONDITIONS WHICH DO VARY FROM
PERMIT TO PERMIT. IN ADDITION, (4) SUBPART A CONTAINS SECTIONS ON THE
EFFECT OF HAVING A PERMIT, SUCH AS THE EXTENT OF THE PROTECTION A PERMIT
PROVIDES, HOW IT IS REVIEWED, AND WHEN IT CAN BE MODIFIED OR TERMINATED.
THE REGULATIONS HAVE BEEN ORGANIZED TO FOLLOW THIS SEQUENCE, AND WE HAVE
REWRITTEN THE SECTION HEADINGS TO CLARIFY THE RELATIONS BETWEEN
PROVISIONS IN SUBPART A AND PARALLEL PROVISIONS IN THE PROGRAM SUBPARTS.
THE ORGANIZATION OF THE FINAL REGULATIONS IS DISPLAYED IN TABLE II.
TABLE II. -- ORGANIZATION OF PART 122
TABLE OMITTED
A READER MIGHT WISH TO DETERMINE THE TREATMENT OF A PARTICULAR
ACTIVITY UNDER PART 122 IN THE FOLLOWING MANNER (REFERRING TO TABLE II):
FIRST, IF THE ACTIVITY IS WITHIN A STATE WITH AN APPROVED PROGRAM THE
INDIVIDUAL IS NOT DIRECTLY COVERED BY PART 122, BUT RATHER BY STATE
PROGRAM STATUTES AND REGULATIONS APPROVED UNDER PART 123, AND THE READER
WOULD CONSULT THOSE STATE STATUTES AND REGULATIONS. BECUASE SOME OF THE
PROGRAMS COVERED BY THESE REGULATIONS ARENEW, AND OTEHRS MAY NOT BE
APPROVED IN A PARTIUCLAR STATE, THE READER MIGHT WISH TO CONSULT PART
123 TO DETERMINE WHAT THE MINIMUM REQUIREMENTS FOR ONE OF THESE PROGRAMS
WOULD BE IN THE SATE. OTHERWISE, THE READER WOUL FIRST GO TO THE
"ORIENTATION MATERIAL," WHICH SUMMARIZES EACH PROGRAM SUFFICIENTLY TO
GIVE A QUICK IDEA OF WHETHER FURTHER EXAMINATION OF THE REGUALTIONS IS
WARRANTED. IF THE ACTIVITY IS COVERED, THE READER WOULD NEXT TURN TO
THE "APPLICATION" PROVISIONS TO SEE THAT PROCEDURES TO FOLLOW IN
OBTAINING A PERMIT OR OTHER AUTHORIZATION. BEYOND THIS POINT AN
INDIVIDUAL'S REQUIREMENTS UNDER THESE PROGRAMS WILL BE SPELLED OUT IN
THEPERMIT DOCUMENT (EXCEPT WHERE THE ACTIVITY IS AUTHORIZED BY A "RULE"
OR OTHER PERMIT SUBSTITUTE.) IF THE READER WANTS TO KNOW WHAT HIS OR HER
PERMIT REQUIREMENTS WOULD BE, HE OR SHE COULD GO ON TO THE PROVISIONS ON
"ESTABLISHING PERMIT CONDITIONS FIRST, "STANDARD CONDITIONS" THATWILL
APPEAR IN ALL PERMITS CAN BE LOOKED UP. SECOND, THE SECTIONS ON
ESTABLISHING VARIABLE PERMIT CONDITIONS CAN BE CONSULTED; THESE WILL
REFER TO THE LOCATION OF THE OTHER SECTIONS OF THESE AND OTHER
REGULATIONS THATSET FORTH THE REQUIREMENTS FOR VARIABLE PERMIT
CONDITIONS AND HOW THEY ARE DERIVED THROUGH THE APPLICATION OF TECHNICAL
REGULATIONS FOR EACH OF THE PROGRAMS WHICH DO NOT APPEAR WITH THESE
REGULATIONS. FINALLY, THE PROVISIONS IN SUBPART A OF THE "EFFECT OF A
PERMIT" WILL TELL THE READER WHAT IT MEANS TO HAVE A PERMIT: THE
PROTECTION THAT IT OFFERS, AND HOW IT MAY BE REOPENED OR CHANGED.
ORIENTATION SECTIONS HAVE BEEN ADDED TO THE BEGINNING OF EACH SUBPART
OF PART 122. THE FIRST OF THESE ORIENTATION SECTIONS BREIFLY INTRODUCES
THE CONDOLIDATED REGULATION AS A WHOLE (SECTION 122.1). THE SECOND SETS
FORTH THE PURPOSE AND SCOPE OF PART 122 (SECTION 122.2). FINALLY, EACH
OF THE PROGRAM SUBPARTS OF PART 122 NOW CONTAINS AN INTRODUCTORY SECTION
SETTING OUT THE BASICS OF THAT PROGRAM'S PERMIT SYSTEM. THESE
INTRODUCTORY SECTIONS ARE DESIGNED BOTH TO INDICATE AT THE BEGINNING
WHAT ACTIVITIES ARE REGULATED, AND TO MAKE THE MORE DETAILED SECTIONS
WHICH FOLLOW EASIER TO COMPREHEND. MUCH OF THIS MATERIAL IS EXPLANATORY
AND ILLUSTRATVE RATHER THAN REGULATORY. EPA BELIEVES THAT INCLUSION OF
THIS MATERIAL IS EXPLANTORY AND ILLUSTRATIVE RATHER THAN REGULATORY.
EPA BELIEVES THAT INCLUSION OF THIS MATERIAL WILL HELP REDUCE THE
CONFUSION CREATED BY THE COMPLEXITY OF THE REGULATIONS. BECAUSE THE
INTRODUCTORY SECTIONS ARE SUMMARIES THEY CAN NOT SUBSTITUTE FOR THE FULL
REGULATIONS WHICH FOLLOW.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 006 OF 225
COSTLE DM ADMINISTRATOR
EPA
113505
REGULATIONS
THOSE SECTIONS OF PART 122 AND PART 124 WHICH ARE APPLICABLE TO STATE
PROGRAMS (THROUGH REFERENCE IN PART 123) HAVE BEEN HIGHLIGHTED IN THE
SECTION (OR, WHERE NECESSARY, PARAGRAPH) HEADINGS. INDICATION THAT A
SECTION IS "APPLICABLE TO STATE PROGRAMS" DOES NOT MEAN THAT EXACTLY THE
SAME PROVISION WILL BE APPLICABLE TO OWNERS OR OPERATORS WHO RECEIVE
THEIR PERMITS FROM A STATE. RATHER, "APPLICABILITY" MEANS THAT A STATE
PROGRAM MUST HAVE A SIMILAR PRIVISION IN ITS OWN STATUTES AND
REGULATIONS IN ORDER TO RECEIVE APPROVAL TO OPERATE IN LIEU OF EPA (OR
THE CORPS OF ENGINEERS FOR 404). FOR THE CORRESPONDING STATE PROVISION,
THESE STATUTES AND REGULATIONS WOULD HAVE TO BE CONSULTED. THIS SUBJECT
IS DISCUSSED AT LENGTH IN THE PREAMBLE TO PART 123.
SOME MATERIAL HAS BEEN SHIFTED FROM THE PROGRAM-SPECIFIC SUBPARTS TO
SUBPART A WHEN IT MAKES SENSE TO DO SO. AN EXAMPLE IS NONCOMPLIANCE
REPORTING (SECTION 122.18): MOVING ALL THE REQUIREMENTS INTO SUBPART A
HAS ELIMINATED MANY SECTIONS AND A LARGE NUMBER OF CROSS-REFERENCES, AS
WELL AS MANY NEEDLESS INCONSISTENCIES.
EPA HAS ATTEMPTED WHENEVER POSSIBLE TO INDICATE IN ITALICS AT THE
BEGINNING OS SUBPARAGRAPHS AND PARAGRAPHS WHEN THE MATERIAL THAT FOLLOWS
IS APPLICABLE TO ONE PROGRAM ONLY, AS OCCURS OCCASIONALLY IN THE GENERAL
SUBPART A.
PARAGRAPH AND SUBPARAGRAPH HEADINGS HAVE BEEN ADDED TO BREAK UP LONG
SECTIONS OR TO IDENTIFY THE MATERIAL WHICH FOLOWS. HOWEVER, IT IS NOT
ALWASY POSSIBLE TO PROVIDE A HEADING FOR EVERY PARAGRAPH IN A SECTION.
A LARGE NUMBER OF CROSS-REFERENCES BETWEEN THESE PERMIT REGULATIONS
AND THE TECHNICAL PERMIT REGULATIONS AND THE TECHNICAL REGULATIONS IS
UNAVOIDABLE. HOWEVER, EPA HAS TRIED TO ORGANIZE BOTH SETS OF
REGULATIONS TO PALCE THE PERMIT MATERIAL IN THE PERMIT REGULATIONS AND
TECHNICAL MATERIAL IN THE TECHNICAL REGULATIONS, TO MAKE THESE MATERIALS
CONSISTENT, TO PROVDE CROSS-REFERENCES WHEN NEEDED, AND TO MAKE THE
CROSS-REFERENCES UNDERSTANDABLE. WE HAVE ADDED TOPICAL HEADINGS FOR
MANY CROSS REFERENCES TO HELP READERS DETERMINE THE NATURE OF THE
REQUIREMENT REFERRED TO.
SOME COMMENTCRS RAISED CONCERNS REGARDING THE STATUS OF "COMMENTS" IN
THE PROPOSAL, ESPECIALLY WHEN THEY CONTAIN REGULATORY MATERIAL. WE HAVE
ATTEMPTED TO ELIMINATE AS MANY COMMENTS AS POSSIBLE BY MOVING REGULATORY
MATERIAL INTO THE TEXT AND PURELY EXPLANTORY MATERIAL INTO THE PREAMBLE
OR THE"PURPOSE AND SCOEP" SECTIONS. HOWEVER, WE HAVE RETAINED SOME
COMMENTS TO GIVE EXAMPLES OR ILLUMINATE REQUIREMENTS CONTAINED IN THE
REGULATIONS. FOLLOWING STANDARD FEDERAL REGISTER STYLE, THESE COMMENTS
HAVE BEEN LABELED AS "NOTES."
B. HOW DOES THIS PART RELATE TO THE JUNE 14, 1979 PROPOSAL?
THE FOLLOWING IS A DISCUSSION OF THE SIGNIFICANT COMMENTS RECEIVED
AND OF THE BASIS FOR REVISIONS MADE TO PART 122 OF THE PROPOSED
REGULATIONS. MINER EDITORIAL AND STYLISTIC CHANGES (INCLUDING
"TECHNICAL AMENDMENTS" SOLICITED IN THE PREAMBLE TO THE JUNE 7, 1979
FINAL NPDES REGULATIONS) HAVE B-EN MADE IN ALL SECTIONS AND ARE NOT
DISCUSSED. "INCLUDES, BUT IS NOT LIMITED TO" OR "INCLUDES WITHOUT
LIMITATION" HAVE BEEN REWRITTEN SIMPLY AS "INCLUDES" IN ALL CASES AND
WHEREVER THATTERM APPEARS, THE PROVISIONS WHICH FOLLOW ARE NOT
EXCLUSIVE.
MUCH OF THIS MATERIAL APPEARED IN PROPOSED SECTION 122.1, "PURPOSE
AND SCOPE," BUT IT HAS BEEN REORGANIZED AND REWRITTEN TO LOGICALLY SET
OUT THE COVERAGEOF THEENTIRE CONSOLIDATED PERMIT REGULATIONS. THUS,
THERE ARE NOW SEPARATE PARAGAPHS ON (A) COVERAGE, (B) STRUCTURE, (C)
RELATION TO OTHER REGULATIONS, (D) AUTHORITY, (E) PUBLIC STATE
AUTHORITIES WAS FORMERLY SECTION 122.4. BECAUSE IT IS GENERALLY TRUE OF
THESE REGULATIONS,AD NOT JUST TRUE OF PART 122, THAT THEY DO NOT PREEMPT
MORE STRINGENT STATE REQUIREMENTS (EXCEPT AS PROVIDED FOR RCRA IN
SECTION 123.33), THE PROPOSED SECTION WAS MOVED TO SECTIN 122.1 WHERE IT
APPLIES TO ALL OF THE REGULATIONS. IT WAS REWORDED TO CLARIFY THAT
THESE REGULATIONS DO NOT PREEMPT MORE STRINGENT REQUIREMENTS WHETHER OR
NOT THOSE WHETHER OR NOT THOSE REQUIRMENTS ARE PART OF AN APPROVED STATE
PROGRAM.
THIS SECTION IS COMPLETELY NEW. IT HAS BEEN ADDED TO MAKE PART 122
EASIER TO READ AND TO CLARIFY ITS ORGANIZATIONS.
MANY COMMENTERS NOTED THAT THE APPLICABILITY OF PART 122 TO THE
PSD PROGRAM WAS UNCLEAR. THE PSD PROGRAM WAS NOT MENTIONED IN
PROPOSED SECTION 122.1, "PURPOSE AND SCOPE," BUT SOME OF THE
DEFINITIONS IN PART 122 APPEARED TO BE APPLICABLE TO PSD. EPA HAS
DECIDED THAT THE BEST WAY TO AVOID CONFUSION IS TO EXCLUDE PSD FROM
PART 122 ENTIRELY AND THIS IS NOTED IN THE REGULATIONS. INSTEAD,
PSD DEFINITIONS APPEAR IN PART 124, SUBPART C.
A NUMBER OF COMMENTERS MADE GENERAL SUGGESTIONS TO COPE WITH THE
DIFFICULTY OF FINDING THE CORRECT DEFINITION IN SECTION 122.3. THE
PROPOSED ORGANIZED THE DEFINITIONSINTO A PARAGRAPH CONTAINING "GENERAL
DEFINITIONS" FOLLOWED BY PARAGRAPHS CONTAINING DEFINITIONS APPLICABLE TO
EACH OF THE PROGRAMS INDIVIDUALLY. EPA HAS FOLLOWED A SUGGESTION THAT
ALL THE DEFINITIONS BE ORGANIZED INTO ONE ALPHABETICAL LIST. IF A TERM
APPLIES TO FEWER THAN ALL OF THE PROGRAMS, A PARENTHESIS IS INSERTED
AFTER THE TERM TO INDICATE TO WHICH PROGRAMS IT APPLIES. HOWEVER,
BECAUSE MANY READERS OF THIS PREAMBLE ARE LIKELY TO BE PARTICULARLY
INTERESTED IN THE DEFINITION FOR A SINGLE PROGRAM, THE FOLLOWING
RESPONSE TO COMMENTS WILL CONTINUE TO FOLLOW THE PROPOSED FORMAT BY
DISCUSSING FIRST THE "GENERAL DEFINITIONS" AND THEN THE DEFINITIONS THAT
APPLY TO INDIVIDUAL PROGRAMS.
FREQUENTLY TERMS AREDEFINED IN REFERENCE TO OTHER TERMS WHICH ARE
ALSO DEFINED. WHEN A DEFINED TERM APPEARS IN A DEFINITION THE DEFINED
TERM APPEARS WITH QUOTATION MARKS WHEN THIS MAY BE HELPFUL. ALSO,
TECHNICAL TERMS ARE FEQUNTLY USED IN THSE REGULATIONS IN THEIR ACRONYM
FORM, SUCH AS "BMP" FOR "BEST MANAGEMENT PRACTICES." WE HAVE EXPANDED
THE DEFINITION SECTION TO INCLUDE THESE ACRONYMS, WHICH ARE PLACED IN
THEIR ALPHABETICAL ORDER AMONG ALL THE OTHER DEFINITIONS.
ADMINISTRATOR. SOME COMMENTERS POINTED OUT THE CONFLICTS BETWEEN THE
PROPOSD DEFINTIIONS DELEGATION LANGUAGE ("HIS/HER DESIGNEE"), AND THOSE
IN THE DEFINITION OF REGIONAL ADMINISTRATOR ("DELEGATED
REPRESENTATIVE"), PROPOSED SECTION 122.11 (E) (DIRECTOR OR AN
"AUTHORIZED REPRESNETATIVE"), AND PROPOSED SECTION 123.37 (REGIONAL
ADMINISTRATOR OR "HIS DESIGNEE"), FOR CONSISTENCY, THE TERM AHS BEEN
MADE UNFORMLY, "OR AN AUTHORIZED REPRESENTATIVE." ELSEWHERE IN THE
REGULATIONS, ONLY ADMINISTRAOTR, REGIONAL ADMINISTRATOR, OR DIRECTOR IS
USED, WITH THE UNDERSTANDING THAT AUTHORIZED REPRESENTATIVES AND
DESIGNEES ARE INCLUDED IN THESE TERMS UNLESS INDICATED OTHERWISE. FOR
EXAMPLE, THE REGIONAL ADMINISTRATOR MAY BE THE AUTHORIZED REPRESNETATIVE
OF THE ADMINISTRATOR
APPROPRIATE ACT AND REGULATIONS. FOR THE REASONS DISCUSS3D
UNDERSECTION 122.2 ABOVE, EPA HAS DELETED THE REFERENCE TO THE CLEAN AIR
ACT.
AQUIFER AND UNDERGROUND SOURCE OF DRINKING WATER. SOME COMMENTERS
OBJECTED TO THE FACT THAT THE PROPOSAL IN EFFECT SET FORTH TWO
DEFINITIONS OF "UNDERGROUND SOURCE OF DRINKING WATER' (USDW), ONE FOR
USE UNDER RCRA AND ONE WITH "MORE LATITUDE"FOR USE IN THE UIC PROGRAM.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 007 OF 225
COSTLE DM ADMINISTRATOR
EPA
113506
REGULATIONS
THE GREATER FLEXIBILITY FOR USDWS IN THE UIC PROGRAM RESULTED FROM
THE PROCEURES FOR ELIMINATING CERTAIN AQUIFERS, NOW CALLED "EXEMPTED
AQUIFERS," FROM THECOVERAGE OF THE UIC PROGRAM.)
LIKEWISE, COMMENTERS NOTED THAT THE PROPOSED DEFINITION OF "AQUIFER"
("CAPABLE OF YIELDING USEABLE QUANTITIES OF GROUNDWATER") CONTRADICTED
THE DEFINITION OF PROPOSED SECTION 250.41(5) FOR RCRA ("USEABLE
QUANTITIES TO WELLS OR SPRINGS"). THE FINAL DEFINITION APPLICABLE BO
BOTH RCRA AND UIC WHICH APPEARS IN THE CONSOLIDATED REGULATIONS IS "A
GEOLOGICAL FORMATION, GROUP OF FORMATIONS, OR PART OF A FORMATION THATIS
CAPABLE OF YEILDING A SIGNIFICANT AMOUNT OF WATER TO A WELL OR SPRING."
THIS IS SLIGHTLY DIFFERENT THAN THE DEFINITION WHICH APPEARS IN PART 260
FOR RCRA, WHICH IS THE SAME AS PROPOSED SECTION 250.41(5).
IN BOTH INSTANCES EPA AGREES THAT THESE DEFINITIONS SHOULD BE SAME
FOR BOTH PROGRAMS, AND EPA WILL CONFORM THEM. THEY HAVE NOT BEEN
CONFORMED IN THSE REGUALTSION BECAUSE THE QUESTION OF THE PROPER
DEFINITION OF "AQUIFER" AND "USDW" ARE CLOSELY RELATED TO THE SCOPE AND
FORM OF THE SECTION 3004 STANDARDS UNDER RCRA AND TO THE MANNER IN WHICH
CLASS IV WELLS WILL BE DEALT WITH. BOTH THOSE ISSUES ARE SCHEDULED FOR
FINAL RESOLUTION BY EPA NEXT FALL. THE DEFINITIONS OF "AQUIFER" AND
"USDW" WILL BE CHANGED AT THE SAME TIME. THE CURRENT DEFINITION OF
"USDW" APPLIES TO THE RCRA PROGRAM ONLY INSOFAR AS INJECTION WELLS ARE
REGULATED UNDER RCRA UNDER SECTION 122.26.
BEST MANAGEMENT PRACTICES. SEVERAL COMMENTERS NOTED THAT IT WAS
CONFUSING TO PROVIDE TWO SEPARATE DEFINITIONS OF "BEST MANAGEMENT
PRACTICES" (BMPS): ONE FOR NPDES AND ONE FOR STATE 404 PROGRAMS. THE
TWO DEFINITIONS HAVE BEEN COMBINED SO THAT THEY APPEAR IN ONE PLACE.
THE DIFFEREING COVERAGE UNDERTWO PROGRAMS IS HIGHLIGHTED IN THE NEW
COMBINED DEFINITION.
FOR 404, SEVERAL COMMENTERS, OBJECTED TO THE REQUIREMENT THAT BMPS
"ENSURE COMPLIANCE WITH WATER QUALITY STANDARDS." EPA AGREES THATTHE
PROPOSED DEFINITIONS COULD BE INTERPRETED TO PALCE AN UNREALISTIC BURDEN
ON INDIVIDUAL BMPS, AND THEREFORE, HAS CHANGED THE DEFINITION TO REQIRE
THAT BMPS FACILITATE COMPLIANCBITH APPLICABLE WATER QUALITY STANDARDS.
SOME COMMENTERS ARGUED THAT THERE SHOULD BE NO REFERENCE AT ALL TO WATER
QUALITY STANDARDS BECAUSE CWA SECTION 404(H)(1)(A)(I) DOES NOT MENTION
THEM. THE AGENCY DISAGREES, BECAUSE THAT SECTION REFERS TO THE
ENVIRONMENTAL GUIDELINES PROMULGATED UNDER CWA SECTION 404(B)(1) (THE
SECTION 404(B)(1) GUIDELINES," 40 CFR PART 230 WHICH DO REQUIRE
COMPLIANCE WITH APPLICABLE WATER QUALITY STANDARDS.
SOME COMMENTERS WANTED THE BMP DEFINITION TO REQUIRE CONSIDERATION OF
PRACTICABILITY, FEASIBILITY, OR ECONOMICS. THE FINAL REGULATION ALLOWS
STATES TO INCLUDE SUCH CONSIDERATIONS IN ADDITION TO THE MINIMUM
ENVIRONMENTAL REQUIREMENTS. IT SHOULD ALSO BE NOTED THAT THE SECTION
404 BMPS CONTAINED IN SECTION 123.92 ARE NOT ABSOLUTE REQUIREMENTS;
ANYONE OBJECTING TO ANY OF THEM MAY APPLY FOR A PERMIT AND RAISE
QUESTIONS OF PRACTICABILITY IN THAT CONTEXT.
FACILITY OR ACTIVITY. IN RESPONSE TO A COMMENT, EPA HAS CLARIFIED
THE APPLICABILITY OF THIS DEFINITION TO SECTION 404 PROGRAMS BY ADDING A
REFERENCE TO THE 404 PROGRAM. "FACIOITY" AND "ACTIVITY" FREQUENTLY
APPEAR IN PART 123, SUBPART E.
HAZARDOUS WASTE. TWO COMMENTERS STATED THAT A FULL DEFINITION OF
"HAZARDOUS WASTE" RATHER THAN A CROSS-REFERENCE SHOULD BE GIVEN.
HOWEVER, THE DEFINITION IN PART 261 IS TOO COMPLEX TO BE SET OUT IN
FULL. SEVERAL OTHER COMMENTERS STATED THAT NO REFERENCE SHOULD BE MADE
TO RCRA SECTION 1004 BECAUSE THAT DEFINITION IS NOT SELF-IMPLEMENTING
AND THE ONLY HAZARDOUS WASTES COVERED BY SUBTITLE C OR RCRA ARE THOSE
WHICH ARE IDENTIFIED OR LISTED UNDER SECTION 3001. EPA ACCEPTA THIS
COMMENT AND HAS CHANGED THE DEFINITION OF "HAZARDOUS WASTE" SO THAT IT
READS ENTIRELY IN TERMS OF THE SUBSTANTIVE RCRA REGULATIONS.
MAJOR FACILITY. THIS IS A NEW DEFINITION ADDED TO THE FINAL
REGULATIONS. IT IS DISCUSSED IN PARAGRAPH (2) OF THE PREAMBLE TO
SECTION 122.18.
OWNER OR OPERATOR. THIS DEFINITION REMAINS UNCHANGED. SOME
COMMENTERS SOUGHT CLARIFICATION OF WHAT HAPPENS WHEN THE OWNER AND
OPERATOR ARE NOT THE SAME, AND EXPRESSED CONCERN THAT REQUIREMENTS OF
THE PERMIT PROGRAM MIGHT, BY VIRTUE OF THIS DEFINITION, BE IMPOSED ON
LANDOWNERS WHO HAVE NO INVOLVEMENT IN OPERATION OF A PERMITTED ACTIVITY.
TO ADDRESS THIS CONCERN, WE HAVE AMENDED SECTION 122.4 APPLICATION FOR
A PERMIT, TO PROVIDE THA THE OPERATOR IS RESPONSIBLE FOR OBTAINING A
PERMIT AND COMPLYING WITH IT WHEN OWNERSHIP AND OPERATION ARE SPLIT.
HOWEVER, RCRA APPLICATIONS MUST BE SIGNED BOTH BY THE OWNER AND THE
OPERATOR. THE REQUIREMENTS OF A RCRA PERMIT BIND BOTH THE "OWNER" AND
THE "OPERATOR" OF THE PERMITTED FACILITY, WHILE THE REQUIREMENTS OF
OTHER PERMITS SUBJECT TO THIS PART BIND ONLY THE PERMIT HOLDER.
THE REASONS FOR THIS APPROACH ARE EXPLAINED IN THE PREAMBLE TO THE
REGULATIONS IMPLEMENTING SECTIN 3004 OF RCRA. BRIEFLY, THIS APPRAOCH
HAS BEEN CHOSEN BECAUSE THERE IS AT LEAST ONE ONE PROVISION OF THE 3004
REGULATIONS THAT ONLY THE OWNER CAN COMPLY WITH -- THE ONE REQUIRING
INSERTION OF A NOTATION IN THE DEED TO THE PROPERTY IN QUESTION. IT
ALSO MAY BE MATERIALLY MORE DIFFICULT TO IMPLEMENT AND ENFORCE THE
CLOSURE AND IMPLEMENT AND ENFORCE THE CLOSURE AND FINANCIAL
RESPONSIBILITY PROVISIONS OF THE REGULATIONS IF THE OWNER IS NOT BOUND,
SINCE IN AT LEAST SOME OF THOSE CASES THE SITE MAY HAVE BEEN ABANDONED
AND THE "OPERATOR" MAY BE DIFFICULT TO DETERMINE. JOINT RESPONSIBILITY
WILL ALSO PROVIDE MORE INCENTIVE TO COMPLY WITH THE REQUIREMENTS OF THE
RCRA PROGRAM. FINALLY, THE LEGISLATIVE HISTORY SUGGESTS THAT BOTH OWNER
AND OPEATOR SHOULD BE BOUND.
TO ENSURE THAT BOTH THE OWNER AND THEOPERATOR UNDERSTAND THEIR JOINT
RESPONSIBILITY, EPA IS REUIRING BOTH THE OWNER AND THE OPERATOR TO SIGN
THE PERMIT APPLICATION. IN ADOPTING THIS APPROACH, HOWEVER, EPA HAS NO
INTENTION TO REQUIRE BOTH OWNER AND OPERATOR TO TAKE ALL OR EVEN MOST
COMPLIANCE ACTIONS IN TANDEM. EPA WILL REGARD COMPLIANCE BY EITHER
OWNER OR OPERATOR WITH ANY GIVEN OBLIGATION UNDER THE PERMIT AS
SUFFICIENT FOR BOTH OF THEM. EPA ANTICIPATES THAT IN MOST CASES THE
OPERATOR WILL TAKE THE LEAD ROLE IN COMPLYING WITH ALL BUT THE FEW
CONDITIONS THAT ONLY THE OWNER CAN SATISFY. THE OWNER IS FREE TO MAKE
ARRANGEMENTS WITH THE OPERATOR BY CONTRACT OR OTHERWISE TO ASSURE ITSELF
THAT THE OPERATOR WILL TAKE MOST ACTIONS NECESSARY FOR COMPLIANCE
ACTIVITIES BEYOND THAT. NONETHELESS, EPA CONSIDERS BOTH PARTIES
RESPONSIBLE FOR COMPLIANCE WITH THE REGULATIONS.
PERMIT. EPA HAS CHANGEDTHE DEFINITION IN RESPONSE TO COMMENTS.
FIRST, COMMENTERS FOUND OBSCURE AND CONFUSING THE STATEMENT THAT "IN
PART 124, REFERENCE TO 'PERMIT' MAY INCLUDE PERMITMODIFICATION,
REOVATION OR DENIAL." EPA AGREES, PART 124 HAVE BEEN REWRITTEN TO
SPECIFY THE PRECISE KINDS OF PERMIT ACTIONS TO WHICH ITS PROVISIONS
APPLY.
SECOND, WE HAVE CLARIFIED THE SCOPE OF THE DEFINITION BY ADDING
REFERENCES TOOTHER TYPES OF AUTHORIZATION OR DOCUMENTS, SUCH AS "GENERAL
PERMIT," "DRAFT PERMIT," AND "PERMIT BY RULE." SIMILARLY, SECTION 122.4,
APPLICATION FOR A PERMIT, IS NOW WRITTEN TO CLARIFY WHICH OF THE SEVERAL
TYPES OF OR OTHER AUTHORIZATIONS UNDER THESE REGULATIONS IS COVERED BY
THE APPLICATION REQUIREMENT.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 008 OF 225
COSTLE DM ADMINISTRATOR
EPA
113507
REGULATIONS
FINALLY, THE PROCEDURES GOVERNING ISSUANCE, ADMINISTRATION, OR
TERMINATION OF THE INTERIM STATUS, AUTHORIZATION BY RULE, PERMITS BY
RULE, AND EMERGENCY PERMITS ARE SEGREGATED WITHIN THEIR OWN SECTIONS.
AS A RESULT, PROVISIONS OF PARTS 122 AND 124 (AND DISCUSSIONS IN THIS
PREAMBLE) WHICH ARE GENERALLY APPLICABLE TO PERMITS, PERMIT
APPLICATIONS, AND PERMITTEES ARE NOT APPLICABLE TO THOSE TYPES OF
AUTHORIZATION, BUT ARE APPLICABLE TO ALL OTHER PERMITS, INCLUDING AREA
PERMITS AND GENERAL PERMITS. THE FOLLOWING CHART MAY BE HELPFUL IN
DETERMINING WHICH PROVISIONS OF THE REGULATIONS APPLY TO WHICH KINDS OF
AUTHORIZATIONS.
BILLING CODE 6560-01-M.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 009 OF 225
COSTLE DM ADMINISTRATOR
EPA
113508
REGULATIONS
TABLE III: TYPES OF PERMIT AND OTHER AUTHORIZATION
TABLE OMITTED.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 010 OF 225
COSTLE DM ADMINISTRATOR
EPA
113509
REGULATIONS
PERSONS. THE DEFINITION HAS BEEN REWORDED TO ELIMINATE DUPLICATION.
STATE. ONE COMMENTER SUGGESTED THAT THIS DEFINITION BE CHANGED TO
INCLUDE INDIAN TRIBES SO THAT THEY WOULD BE ABLE TO ADMINISTER PROGRAMS
UNDER PART 123, EPA HAS NOT ACCEPTED THIS SUGGESTION BECAUSE RCRA, SDWA,
AND CWA ALL EXPLICITLY DEFINE "STATE" AND NONE INCLUDES INDIAN TRIBES.
INDIAN TRIBES ARE INCLUDED WITHIN THE MEANING OF "MUNICIPALITY" IN THESE
STATUTES.
STATE DIRECTOR. THE DEFINITION HAS BEEN CHNAGED FROM "A STATE
AGENCY" TO "ANY STATE AGENCY" TO REFLECT THE FACT THAT A STATE MAY HAVE
MORE THAN ONE AGENCY ADMINISTERING THEPERMIT PROGRAMS. 13(2)
DEFINITIONS FOR RCRA.
COMMENTS WERE RECEIVED REQUESTING CLARIFICATIONS OR REVISIONS TO
DEFINITIONS APPLICABLE TO THE RCRA PROGRAM REQUIREMENTS. MANY OF THE
DEFINITIONS HAVE BEEN CLARIFIED OR REVISED. ALL RCRA DEFINITIONS IN
THESE FINAL REGULATIONS ARE TAKEN FROM 40 CFR PART 260. PART 260
PROVIDES THE DEFINITIONS FOR TERMS USED IN 40 CFR PARTS 261 THROUGH 266.
USING THE PART 260 DEFINTIONS IN THESE REGULATIONS WILL ENSURE
UNIFORMITY IN ALL THE REGULATIONS PROMULGATED UNDER SUBTITLE C OF RCRA.
COMMENTS ON THE RCRA DEFINITIONS ARE ADDRESSED AND RESPONDED TO AS PART
OF THE RULEMAKING ON 40 CFR PART 260.
EXISTING HWM FACILITY. THIS DEFINITION IS DISCUSSED IN THE PREAMBLE
TO PART 122, SUBPART B.
MAJOR HAZARDOUS WASTE MANAGEMENT FACILITY. IN THE PROPOSAL EPA
DEFINED "MAJOR HWM FACILITY" AS ONE THAT HANDLED AT LEAST 5,000 TONS OF
WASTE A YEAR. EPA RECEIVED A NUMBER OF COMMENTS QUESTIONING THIS
DEFINITION. FOR THE REASONS DISCUSSED IN THE PREABLE TO SECTION 122.18,
EPA HAS DETERMINED THAT MAJORHWM FACILITY WILL BE DEFINED THROUGH
GUIDANCE, AND CONSEQUENTLY THIS DEFINITION HAS BEEN DELETED. EPA
INTENDS THAT THIS GUIDANCE WILL RESULT IN APPROXIMATELY 10 PERCENT OF
RCRA FACILITIES BEING CLASSIFIED AS MAJOR.
WELL. COMMENTERS REQUESTED THAT SLUDGE DRYING BEDS AND TREATMENT
LAGOONS WHICH SEEP INTO GROUNDWATER SHOULD NOT BE CONSIDERED WELLS. EPA
AGREES AND HAS ADDED A DEFINITION OF "WELL," LAGOONS AND DRYING BEDS DO
NOT MEET THIS DEFINITION OF A WELL. HOWEVER, THOSE FACILITIES MAY BE
SUBJECT TO REGULATION UNDER RCRA.
ADDITIONAL DEFINITIONS. DEFINITIONS FOR THE FOLLOWING UIC TERMS HAVE
BEEN ADDED TO CALRIFY THEIR USE IN THE CONSOLIDATED PERMIT REGULATIONS:
ACIDIZING, EXEMPTED AQUIFER, FLUID, FORMATION, FORMATION FLUID, AND
PLUGGING.
THESE NEW TERMS AND COMMENTS ON TERMS WHICH APPEARED IN THE PROPOSAL
ARE DISCUSSED IN THE PREAMBLE TO PART 122, SUBPART C, OR WILL BE
DISCUSSED IN THE PREAMBLE TO 40 CFR PART 146.
NAVIGABLE WATERS AND WATERS OF THE UNITED STATES. COMMENTERS NOTED
THAT THE DEFINITIONS FOR "NAVIGABLE WATERS" AND "WATERS OF THE UNITED
STATES" WERE CIRCULAR, EPA AGREES AND HAS ELIMINATED THE USE OF THE TERM
"NAVIGABLE WATERS" IN FAVOR OF USING "WATERS OF THE UNITED
STATES"THROUGHOUT THESE REGULATIONS AND PROVIDING A SINGLEDEFINITION.
"WATERS OF THE UNITED STATES" WAS CHOSEN FOR THE SAME REASON THAT IT IS
USED IN THE CLEAN WATER ACT:? THE ACT COVERS MUCH MORE THAN WATERS WHICH
ARE TRADITIONALLY "NAVIGABLE."
THE FOLLOWING CHANGES HAVE BEEN MADE IN THE PROPOSED DEFINTION OF
"NAVIGABLE WATERS," WHICH NOW APPEARS AS THE DEFINITION OF "WATERS OF
THE UNITED STATES;"
(1) "WETLANDS" HAS BEEN GIVEN ITS OWN DEFINITION BECAUSE IT IS
SOMETIMES USED INDEPENDENTLY, AND INCLUDED WITHIN THE SCOPE OF "WATERS
OF THE UNITED STATES" BY CROSS-REFERENCE.
(2) THE PROPOSAL EXEMPTED "TREATMENT PONDS OR LAGOONS DESIGNED TO
MEET THE REQUIREMENTS OF THE CAW" FROM THE DEFINITION OF NAVIGABLE
WATERS. TO CLARIFY THAT THE SCOPE OF THIS EXEMPTION IS NOT LIMITED TO
TREATMENT PONDS OR LAGOONS, IT IS NOW WRITTEN TO COVER "WASTE TREATMENT
SYSTEMS INCLUDING TREATMENT PONDS OR LAGOONS . . ." BECUASE CWA WAS NOT
INTENDED TO LICENSE DISCHARGERS TO FREELY USE WATERS OF THE UNITED
STATES AS WASTE TREATMENT SYSTEMS, THE DEFINITION MAKES CLEAR THAT
TREATMENT SYSTEMS CREATED IN THOSE WATERS OR FROM THEIR IMPOUNDMENT
REMAIN WATERS OF THE UNITED STATES. MANMADE WASTE TREATMENT SYSTEMS ARE
NOT WATERS OF THE UNITED STATES, HOWEVER, SOLELY BECUASE THEY ARE
CREATED BY INDUSTRIES ENGAGED IN, OR AFFECTING, INTERSTATE OR FOREIGN
COMMERCE. FINALLY, AS IN THE PROPOSAL, CERTAIN COOLING PONDS FALL
OUTSIDE THE EXEMPTION EPA HAS REFERRED TO THE DEFINITION OF COOLING
PONDS IN 40 CFR SECTION 423.11(M) TO INDICATE THE TYPE OF COOLING PONDS
INTENDED.
NEW DISCHARGER. EPA HAS CHANGED THIS DEFINITION IN TWO WAYS. FIRST,
EPA HAS EXPANDED THE DEFINITION TO INCLUDE AN INDIRECT DISCHARGER WHICH
COMMENCES DISCHARGING INTO WATERS OF THE UNITED STATES. THIS DOES NOT
REPRESENT A CHANGE IN POLICY BUT IS MERELY A WORDING CHANGE TO SIMPLIFY
THE REGULATORY LANGUAGE REGARDING NEW DISCHARGERS, FORMER INDIRECT
DISCHARGERS,AND RECOMMENCING DISCHARGERS.
SECOND, THE DEFINTION NOW SPECIFICALLY INCLUDES A MOBILE POINT SOURCE
THAT BEGINS DISCHARGING AT A NEW LOCATION FOR WHICH IT DOES NOT HAVE AN
EXISTING PERMIT. THIS CLARIFIES OUR EXISTING PERMIT. THIS CLARIFIES
OUR EXISTING INTERPRETATIN THAT A MOBILE SOURCE THAT MOVES TO A NEW
LOCATION, UNLIKE AN EXISTING SOURCE AT THAT LOCATION, CREATES A NEW
ENVIRONMENTAL INSULT AND THEREFORE SHOULD NOT BE ALLOWED TO BEGFIN
DISCHARGING UNTIL FINAL AGENCY ACTION GRANTING A PERMIT AND UNTIL
INSTALLATION OF THE NECESSARY POLLUTION CONTROL EQUIPMENT. THUS, THESE
SOURCES ARE INELGIBLE FOR STAYS OF CONTESTED PERMIT CONDITIONS ON THE
BASIS OF A REQUEST FOR AN EVIDENTIARY HEARING WHCH HAS BEEN GRANTED.
THESE SOURCES ARE GOVERNED BY SECTION 124.59(A); IF THE REQUEST FOR AN
EVIDENTIARY HEARING IS GRANTED, "THE APPLICANT SHALL BE WITHOUT A PERMIT
PENDING FINAL AGENCY ACTION UNDER SECTION 124.91."
THIS CHANGE ALSO REQUIRES, UNDER SECTION 122.L6 (PROPOSED SECTION
122.81(D)(4)), THAT A MOBILE POINT SOURCE START UP CONTROL EQUIPMENT
BEFORE BEGINNING DISCHARGE AND MEET ITS PERMIT CONDITIONS WITHIN THE
SHORTESTE FEASIBLE TIME. UNDER SECTION 122.10, IT IS INELIGIBLE FOR
SCHEDULES OF COMPLIANCE, AND UNDER SECTION 122.53 IT IS REQUIRED TO
SUBMIT A NEW PERMIT APPLICATION 180 DAYS BEFORE RECOMMENCING DISCHARGE
AT THE NEW LOCATION, UNLESS THAT REQUIREMENT IS WAIVED. BECAUSE A NEW
PERMIT IS REQUIRED EACH TIME THE SOURCE MOVES, THE PERMIT CAN BE UPDATED
TO INCORPORATE THE APPROPRIATE WATER QUALITY STANDARDS FO THE AREA AND
ANY OTHER APPRPRIATE PERMIT REQUIREMENT.
PRIVATELY OWNED TREATMENT WORKS. TO CLARIFY THE NEW PROVISIONS FOR
TREATMENT WORKS OTHER THAN POTWS (SECTION 122.62 (M)) WE HAVE ADDED A
DEFINTION OF "PRIVATELY OWNED TREATMENT WORKS." THE DEFINITION INCLUDSE
ANY TREATMENT SYSTEM WHICH IS NOT A POTW AND WHOSE OPERATOR IS NOT THE
OPERATOR OF THE FACILITY WHOSE WASTES ARE BEING TREATED. THUS, THE
TYPICAL CASE OF A SINGLE OPERATOR OF AN INDUSTRIAL FACILITY PROVIDING
ITS OWN TREATMENT WOULD NOT BE PRIVATELY OWNED TREATMENT WORKS.
ALTHOUGH TERMED A "PRIVATELY OWNED" TREATMENT WORKS THE DEFINITION DOES
NOT EXCLUDE A TREATMENT WORKS THAT IS OWNED BY A STATE OR MUNICIPALITY
BUT WHICH MEETS THIS DEFINITION.
THE PROPOSAL CONTAINED DEFINMTIONS FOR "PLOWING, "SEEDING,"
"CULTIVATING," "MINOR DRAINAGE," AND HARVESTING," BECAUSE THESE TERMS
ARE ONLY USED ONCE, IN THE SECTION 123.92 (PROPOSED SECTION 123.107)
LIST OF ACTIVITIES NOT REQUIRING PERMITS, EPA HAS MOVED THEM TO THAT
SECTION. RESPONSES TO THE MANY COMMENTS RECEIVED ON THESE TERMS APPEAR
IN THE CORRESPONDING PREAMBLE.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 011 OF 225
COSTLE DM ADMINISTRATOR
EPA
113510
REGULATIONS
DISCHARGE OF DREDGED MATERIAL. ONE COMMENTER QUESTIONED THE
DISTINCTION, IN THE DEFINITION OF DREDGED MATERIAL, BETWEEN DISCHARGES
FROM ON-BOARD PROCESSING (INCLUDED IN THE DEFINITION) AND ON-SHORE
PROCESSING OF DREDGED MATERIAL (NOT INCLUDED). THIS DISTINCTION COMES
FROM THE CORPS OF ENGINEERS REGULATIONS, 33 CFR SECTION 323.2(8).
COMMENTS TO THE CORPS SUGGESTED THAT THERE WERE SIGNIFICANT DIFFERENCES
BETWEEN THE TWO KINDS OF OPERATIONS, JUSTIFYING THE DISTINCTION.
HOWEVER, TO CLARIFY THE DISTINCTION AND TO MAINTAIN CONSISTENCY IN
ELIMINATING THE "PRIMARY PURPOSE TEST" (SEE DISCUSSION OF "FILL
MATERIAL"), EPA HAS CHANGED THE DEFINITION TO EXCLUDE ALL DISCHARGES
RESULTING FROM ON-SHORE PROCESSING OF DREDGED MATERIAL, REGARDLESS OF
THE PURPOSE FOR WHICH THE MATERIAL WAS EXTRACTED. ALL SUCH ON-SHORE
PROCESSING DISCHARGES ARE SUBJECT TO THE NPDES PROGRAM. EXTRACTION AND
SUBSEQUENT DEPOSIT OF THE DREGED MATERIAL MAY STILL BE SUBJECT TO
REGULATION BY THE CORPS OR UNDER A STATE SECTION 404 PROGRAM, AND ARE
UNAFFECTED BY THIS CHANGE.
ONE COMMENTER ARGUED THAT DREDGED MATERIAL RETURNED "UNALTERED" TO
ITS ORIGINAL BOROW SITE SHOULD NOT BE A DISCHARGE BECAUSE THERE IS NO
"ADDITION" OF A POLLUTANT TO WATERS OF THE UNITED STATES. EPA
DISAGREES; THE RELEASE OF DREDGED MATERIAL INTO THE WATER COLUMN MAY
ADD POLLUTANTS TO THE WATER COLUMN OR THE DOWNSTREAM SUBSTRATE. ALSO,
MOVEMENT OF THE MATERIAL FROM ONE PART OF THE SUBSTRATE TO ANOTHER MAY
HAVE SIGNIFICANT ENVIRONMENTAL EFFECTS BEFORE THE MATERIAL IS ULTIMATELY
RETURNED TO ITS ORIGINAL SITE.
FILL MATERIAL. THE PROPOSED DEFINED FILL MATERIAL AS MATERIAL
DISCHARGED FOR THE PRIMARY PURPOSE OF REPLACING AN AQUATIC AREA WITH
DRYLAND OR OF CHANGING THE BOTTOM ELEVATION OF A WATER BODY, RESERVING
TO THE NPDES PROGRAM DISCHARGES WITH THE SAME EFFECT WHICH ARE PRIMARILY
FOR THE PURPOSE OF DISPOSING OF WASTE. COMMENTS WERE SOLICITED ON THIS
DISTINCTION, REFERRED TO AS THE PRIMARY PURPOSE TEST. TWO COMMENTS WERE
RECEIVED, ONE FAVORING RETENTION OF THE TEST, ONE OPPOSING THE TEST.
EPA HAS DECIDED TO CHANGE THE DEFINITION OF "FILL MATERIAL" TO ELIMINATE
THE PRIMARY PURPOSE TEST AND TO INCLUDE AS FILL MATERIAL UNDER THE 404
PROGRAM ALL POLLUTANTS WHICH HAVE THE EFFECT O F FILL (THIS IS, WHICH
REPLACE PART OF THE WATERS OF THE UNITED STATES WITH DRYLAND OR WHICH
CHANGE THE BOTTOM ELEVATION OF A WATERBODY).
THE AGENCY AGREED WITH THE COMMENTER WHO SAID THATTHE PRIMARY PURPOSE
TEST WAS TOO SUBJECTIVE. IT HAS BEEN OUR EXPERIENCE THAT THE PRIMARY
PURPOSE TEST IS DIFFICULT TO APPLY, PARTICULARY WHERE A PROJECT HAS TWO
PURPOSES. OR WHERE THE PURPOSE CHANGES OVER TIME. IN ADDITION, THE
PURPOSE OF THE DISCHARGE IS IMMATERIAL TO ITS EFFECT ON THE WATERS OF
THE UNITED STATES ; A LANDFILL MOTIVATED BY THE NEED TO DISPOSE OF
WASTE AND A LANDFILL INTENDED TO CREATE A BUILDING SITE BOTH RESULT IN
THE LOSS OF WATERS OF THE UNITED STATES AND POSE A RISK OF CONTAMINATING
THE SURROUNDING AREA.
MOREOVER, THE AGENCY DISAGREED WITH THE SUGGESTION THAT ALL SOLID
WASTE (FOR EXAMPLE GARBAGE, TRAS H, AND SLUDGE) BE REGULATED UNDER
SECTION 402. THERE ARE SEVERAL REASONS WHY EPA BELIEVES THAT ALL
DISCHARGES WITH THE EFFECT OF FILL SHOULD BE HANDLED UNDER THE 404
PROGRAM INSTEAD OF THE 402 PROGRAM. THE 404 PROGRAM IS BETTER SUITED TO
PREVENTING THE UNNECESSARY DESTRUCTION OF VALUABLE WETLAND ECOSYSTEMS.
FOR EXAMPLE, THE SECTION 404(B)(1) GUIDELINES REQUIRE CONSIDERATION OF
ALTERNATIVE SITES; THE NPDES PROGRAM DOES NOT PROVIDE FOR A COMPARIABLE
ALTRENATIVES ANALYSIS. IN ADDITION, THE SECTION 404(B)(1) GUIDELINES
LOOK AT TH ECOLOGICAL IMAPCT OF THE DISCHARGE; THE NPDES PROGRAM USES
TECHNOLOGY-BASED EFFLUENT LIMITATIONS. FINALLY, INDIVIDUAL SECTION 404
PERMITS SPECIFY SITES, WHEREAS NPDES PERMITS ARE ISSUED FOR POINT
SOURCES, SUCH AS A TRUCK DELIVERING TRASH TO A WETLANDS. WRITING AN
NPDES PERMIT FOR A TRUCK PRESENTS PRACTICAL PROBLEMS APART FROM THE
DIFFICULTY OF DEVISING TECHNOLOGY-BASED LIMITATIONS FOR DISCHARGES FROM
TRUCKS.
FOR ALL THESE RASONS, EPA BELIEVES THAT THE NEW DEFINITION OF
"FILL MATERIAL," ELIMINATING THE PRIMARY PURPOSE TEST, BETTER CARRIE
OUT THE GOALS OF THE CLEAN WATER ACT.
IMPOUNDMENT. A FEW COMMENTERS OBJECTED TO THE DEFINITION OF
"IMPOUNDMENT" AS BEING TOO EXPANSIVE, TOO RESTRICTIVE, OR NOT NECESSARY.
WE AGREE THAT THE DEFINITION IS NOT NECESSARY, BECAUSE IMPOUNDMENTS AS
SUCH ARE NOT TREATED DIFFERENTLY FROM OTHER WASTES UNDER THESE
REGULATIONS. BECUASE THE DEFINTION SERVED NO PURPOSE. EPA HAS DELETED
IT TO AVOID CONFUSION.
(1) COMMENTERS SUGGESTED THAT THE USE OF THE TERM "ANY PERSON" IN
PROPOSED SECTION 122.6(A) (NOW SECTION 122.4(A)) MIGHT REQUIRE MORE THAN
ONE PERMIT APPLICATION FOR A FACILITY, WHERE SEVERAL "PERSONS" ARE
MAKING USE OF A FACILITY. EPA INTENDS THE PERSON WITH OPERATIONAL
CONTROL OVER THE FACILITY TO BE THE ONE REQUIRED TO SUBMIT A PERMIT
APPLICATION. ACCORDINGLY, EPA HAS ADOPTED A SUGGESTION OF THE UTILITY
SOLID WASTE ACTIVITIES GROUP THAT A PARAGRAPH TO THIS EFFECT BE ADDED TO
THE SECTION. HOWEVER, FOR RCRA FACILITIES, BOTH THE OWNER AND THE
OPERATOR MUST SIGN THE APPLICATION; SEE DISCUSSION UNDER THE DEFINTION
OF "OWNER AND OPERATOR." THE SECTION HAS ALSO BEEN REDRAFTED, IN RESONSE
TO A COMMENT, TO REFLECT THE THREE LIMITED INSTANCES WHEN A "PERMIT" IS
REQUIRED BUT AN APPLICATION IS NOT (THAT IS, PERMITS BY RULE UNDER RCRA,
AND NPDES AND 404 GENREAL PERMITS.) IN ADDITION, NO "PERMIT" IS REQUIED
UNTIL NOTICE IS GIVEN BY THE DIRECTOR WHEN A FACILITY IS AUTHORIZED BY
RULE FOR UIC OR REGULATED UNDER INTERIM STATUS FOR RCRA. SEE PREAMBLE
TO "PERMIT" UNDER SECTION 122.3.
(2) PROPOSED SECTION 122.7(C) REQUIRED THE PERMITTEE TO REAPPLY IF IT
WISHED TO CONTINUE REGULATED ACTIVITIES AFTER EXPRIATION OF THE PERMIT.
THIS REQUIREMENT HAS BEEN MERGED WITH FINAL SECTION 122.4(A). ONE
COMMNETER SUGGESTED THAT A PERMITTEE SHOULD BE ABLE TO REFER TO THE
APPLICATION FOR ITS EXPIRED PERMIT RATHER THAN SUBMIT A NEW ONE IF NONE
OF THE INFORMATION HAS CHANGED. EPA REJECTS THIS SUGGESTION. IT IS
ESSENTIAL TO OBTAIN AN UPDATED CERTIFICATION OF THE ACCURACY OF THE
INFORMATION BEFORE ISSUING A NEW PERMIT. HOWEVER, NOTHING IN THESE
REUGLATIONS PRECLUDES RESUBMITTING OLD INFORMATION SO LONG AS THE
CERTIFICATION WHICH ACCOMPANIES IT IS CURENT. RESUBMITTAL IS NECESSARY
TO PREVENT ANY CONFUSION AND TO ENSURE ACTIVE AWARENESS OF THE
INFORMATION THAT IS BEING CERTIFIED.
THE REQUIREMENT TO SUBMIT A RENEWAL APPLICATION PRIOR TO THE
EXPIRATION DATE OF THE EXISTING PERMIT HAS BEEN RESTATED IN THE STANDARD
PERMIT CONDITIONS (SECTION 122.7). IN ADDITION, THE PROGRAMSUBPARTS
CONTAIN INFORMATION ON HOW EARLY PERMITTEES MUST SUBMIT THEIR RENEWAL
APPLICATIONS FOR EPA-ISSUED PERMITS: 180 DAYS FOR RCRA (ECTION 122.23),
A REASONABLE TIME BEFORE CONSTRUCTION IS EXPECTED TO BEGIN FOR UIC
(SECTION 122.37), AND 180 DAYS FOR NPDES (SECTION 122.53). BECAUSE
THESE TIMING REQUIREMENTS ARE NOT APPLICABLE TO STATES, IT WAS NOT
POSSIBLE TO PLACE THEM IN THE STANDARD PERMIT COMDITIONS, WHICH WOULD
HAVE GIVEN PERMITTEES THE ADVANCE WARNING OF THE DUTY TO REAPPLY WHICH
ONE COMMENTER REQUESTED. HOWEVER, THESE REGULATIONS DO NOT PRECLUDE
PLACING SUCH A STATEMENT IF PERMITS OR OTHERWISE NOTIFYING PERMITTEES
WHEN RENEWAL APPLICATIONS ARE DUE.
(3) ONE COMMENTER READ PROPOSED SECTION 122.7("PERMIT ISSUANCE," NOW
SECTION 122.4(C)) TO MEAN THAT THE PERMIT ISSUANCE PROCESS NECESSARILY
CANOT BEGIN UNTIL ALL PERMIT APPLICATIONS FOR A FACILITY HAVE BEEN
SUBMITTED. WE HAVE REWRITTEN THE SECTION TO CLARIFY THAT IT IS POSSIBLE
FOR ONE PERMIT TO BE PROCESSED EVEN IF THE DIRECTOR HAS NOT YET RECEIVED
A COMPLETED APPLICATION FOR ANOTHER PERMIT FOR THE SAME FACILITY.
SIMILARLY, WHEN A FACILITY IS REQUIRED TO HAVE SEVERAL PERMITS, THE DUTY
TO SUBMIT A RENEWAL APPLICATION OPERATES INDEPENDENTLY FOR EACH PERMIT.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 012 OF 225
COSTLE DM ADMINISTRATOR
EPA
113511
REGULATIONS
THE SUBJECT OF CONSOLIDATION OF PERMIT APPLICATIONS AND PERMIT
PROCESSING IS FURTHER ADDRESSED IN THE PREAMBLE TO PART 124.
SOME COMMENTERS OBJECTED TO THE VAGUENESS OF THE TERM "COMPLETENESS"
OR REQUETED THAT A NOTIFICATION OF COMPLETENESS BE REQUIRED OF THE
DIRECTOR. SECTION 124.3 CONTAINS PROVISIONS FOR NOTIFICATIONS OF
COMPLETENESS FOR ALL EPA PERMITS FOR RCRA, UIC AND NPDES FACILITIES;
THESE PROVISIONS AREDISCUSSED IN THE ACCOMPANYING PART 124 PREAMBLE. A
SENTENCE HAS BEEN ADDED TO SECTION 122.4(C) TO EMPHASIZE THAT THE
COMPLETENESS OF ONE PERMIT APPLICATION DOES NOT DEPEND ON THE
COMPLETENESS OF OTHER PERMIT APPLICATIONS.
(4) NEW PARAGRAPH (D) OF SECTION 122.4 LISTS THE INFORMATION WHICH
APPLICANTS FOR PERMITS UNDER RCRA, UIC, OR NPDES MUST SUPPLY TO THE
DIRECTOR. A DETAILED DESCRIPTION OF THE PURPOSE OF THESE PERMIT
INFORMATION REQUIREMENTS, AND RESPONSES TO COMMENTS RECEIVED ON THEIR
PROPOSAL, ARE CONTAINED IN THE DETAILED DISCUSSION WHICH APPEARS IN THE
PREAMBLE TO THE CONSOLIDATED APPLICATION FORMS, PUBLISHED ELSEWHERE IN
TODAY'S FEDERAL GISTER. THE REQUIREMENTS AREQUITE BASIC AND GENERATED
RELATIVELY LITTLE COMMENT. A BRIEF DESCRIPTION OF THE REQUIREMENTS IS
INCLUDED HERE.
EPA HAS DEVELOPED A SET OF CONSOIDATED APPLICATIONS FOR EPA
ADMINISTRED RCRA, UIC, AND NPDES PERMITS. THE STRUCTURE OF THE
CONSOLIDATED PERMIT APPLICATION FORMS IS SIMILAR TO THAT OF THE
CONSOLIDATED PERMIT REGULATIONS: QUESTIONS APPLICABLE TO ALL PROGRAMS
ARE CONTAINED IN A GENERALLY APPLICABLE FORM 1, WHICH IS SUPPLEMENTED BY
ADDITIONAL FORMS CONTAINING QUESTIONS FOR EACH SPECIFIC PROGRAM.
LIKEWISE, THE INFORMATION IN SECTION 122.5(D) COMPRISES THE ESSENTIAL
INFORMATION WHICH IS SUBMITED IN FORM 1, WHILE SECTIONS 122.24 FOR RCRA,
122.37 FOR UIC, AND 122.53 FOR NPDES LIST ESSENTAIL INFORMATION WHICH IS
SUBMITTED IN ADDITIONAL FORMS FOR THOSE SPECIFIC PROGARMS.
THE DRAFT CONSOLIDATED PERMIT APPLICATON FORMS APPEARED AS PART III
OF THE JUNE 14, 1979 FEDRERAL REGISTER ALONG WITH CERTAIN PROPOSED NPDES
REGULATIONS WHICH LIST-D THE INFORMATION REQUIREMENTS CONTAINED IN FORM
1 AND FORM 2 (44 FR 34393, 34346). (THE DRAFT FORM 1 WAS TO BE
APPLICBLE TO ALL PROGRAMS EVEN THOUGH ITS CONTENTS WERE LISTED ONLY IN
THE PROPOSED NPDES REGULATIONS.) PROPOSED SECTIONS 122.23 AND 122.36(C)
OF THE CONSOLIDATED PERMIT REGULATIONS ALSO INCLUDED RCRA PART A AND UIC
PERMIT APPLICATION INFORMATION REQUIREMENTS SIMILAR BUT NOT IDENTICAL TO
THOSE IN DRAFT FORM 1. HOWEVER, IT WAS CLEAR IN THE DRAFT CONSOLIDATED
APPLICATION FORMS THAT FORM 1 COVERED ALL APPLICANTS, AND NO CONFUSION
WAS APPARENT IN COMMENTS RECEIVED.
THE INFORMATIONAL REQUIREMENTS IN PARAGRAPH (D) ARE ALSO APPLICABLE
TO STATES. APPLICANTS FOR STATE PERMITS WILL USE STATE APPLICATION
FORMS, WHICH MAY BE DIFFERENT FROM EPA'S CONSOLIDATED APPLICATION FORM.
HOWEVER, TO PROVIDE A MINIMUM LEVEL OF UNIFORMITY IN THE BASIC DATA,
SECTIN 123.7 REQUIRES STATE FORMS TO INCLUDE AT LEAST THE INFORMATION
LISTED HERE IN THE PROGRAM SUBPARTS (SECTIONS 122.24 FOR RCRA, 122.37
FOR UIC AND 122.53 FOR NPDES) FOR EPA PERMIT APPLICATOINS. BECAUSE
THESE SECTIONS ARE APPLICABLE TO STATES, ONLY ESSENTIALINFORMATION IS
LISTED AS A PERMIT APPLICATION REQUIREMNT; THE INFORMATION REQUIRED BY
THSE SECTIONS DOES NOT INCLUDE EVERY DETAIL WHICH APPEARS ON THE
APPLICATION FORMS FOR EPA-ISSUED PERMITS.
THE APPLICABILITY OF THESE INFORMATION REQUIREMENTS TO STATES DOES
NOT ERFLECT A CHANGE FROM THEPROPOSAL. THE FORM 1 REQUIREMENTS WERE TO
BE MADE APPLICABLE TO STATE NPDES PROGRAMS THROUGH A PROPOSED AMENDMENT
TO SECTION 123.73 (SEE 44 FR 34116), AND APPLICABILITY TO STATES OF THE
PERMIT APPLICATION REQUIREMENTS FOR RCRA AND UIC APPEARED IN THE
PROPOSED CONSOLIDATED PERMIT REGULATIONS AT SECTIONS 123.39 AND 123.47
RESPECTIVIELY.
(5) EPA HAS ADDED A NEW PARAGRAPH (E) TO SECTION 122.4 WHICH REQUIRES
APPLICANTS TO KEEP RECORDS FOR A PERIOD OF THREE YEARS OF THE DATA USED
TO COMPLETE ALL APPLICATIONS. THIS REQUIREMENT IS ALSO LISTED IN
SECTION 122.8 (TANDARD PERMIT CONDITIONS) REQUIRING RECORDS OF
BACKGROUND DATA FOR MONITORING AND OTHER REPORTS REQUIRD BY THE PERMIT
TO BE KEPT FOR THREE YEARS. THE RECORDKEEPING REQUIREMENTS ARE
NECESSARY TO SUPPORT ANY SUBSEQUENT EPA ENFORCEMENT ACTION FOR FALSE
REPORTING.
(1) SOME CHANGES HAVE BEEN MADE IN PROPOSED SECTION 122.8(C) (NOW
SECTION 122.5) IN RESPONSE TO COMMENTS. PROPOSED SECTION
122.8(C)(3)(II) (NOW SECTION 122.5(C)(2)) CREATED SOME CONFUSION AS TO
WHAT GROUNDS WERE TO BE CONSIDERED BY THE DIRECTOR IN DENYING A PERMIT
RENEWAL APLICATION WHEN THE PERMITTEE IS OUT OF COMPLIANCE WITH THE
CONTINUED PERMIT. IN RESPONSE TO THESE COMMENTS, EPA HAS AMENDED SECTIN
122.16, TERMINATION OF PERMITS," TO STATE THAT ANY GROUNDS FRO
TERMINATING AN EXISTING PERMIT IS GROUNDS FOR DENYING A PERMIT RENEWL
APLICATOIN. WHILE TERMINATION OF A PERMIT TO STATE THAT ANY GROUNDS FOR
TERMINATING AN EXISTING PERMIT IS GROUNDS FOR DENYING A PERMIT RENEWAL
APPLICATION. WHILE TERMINATION OF A PERMIT OR DENIAL OF AN APPLICATION
IS A HARSH MEASURE THAT WILL ONLY BE USED IN EXTREME INSTANCES, EPA
BELIEVES THAT A PROVISION FOR DOING IT IS NECESSARY AND THAT, IN SOME
INSTANCES, SUCH ACTION WILL BE APPRPRIATE. IF THE DIRECTOR WERE
REQUIRED, AS SOME COMMENTERS SUGGESTED, TO BASE THE DECISION OF WHETHER
OR NOT TO ISSUE THE PERMIT SOLELY ON THEPERMIT RENEWAL APPLICATION, HE
OR SHE WOULD BE IN THE POSITION OF HAVING AUTHORITY TO TERMINATE THE
EXISTING PERMIT FOR THE GROUNDS LISTED IN SECTION 122.16 BUT THEN BEING
REQUIRED TO RENEW THE PERMIT FOR THE SAME FACILITY BECAUSE THE
APPLICATION DID NOT REFLECT THE NONCOMPLIANCE. WE HAVE REWORDED SECTION
124.6 TO CLARIFY THAT WHEN THE DIRECTOR SEEKS TO DENY A RENWAL
APPLICATION, HE OR SHE MUST FIRST ISSUE A NOTICE OF INTNET TO DENY WHICH
IS TREATED AS A FORM OF DRAFT PERMIT, SUBJECT TO PUBLIC NOTICE AND THE
OTHER PROCEDURES OF PART 124. A SPECIFIC REFERENCE TO SECTION IS NOW
PROVIDED IN SECTION 122.5(C)(2).
IN ADDITION, SEVERAL READERS INTERPRETED THIS SECTION TO REQUIRE THE
DIRECTOR TO EITHER DENY THE RENEWAL APPLICATION OR TAKE ENFORCEMENT
ACTION WHEN A FACILITY WITH A CONTINUED PERMIT IS OUT OF COMPLIANCE.
COMMENTS STATED THAT UNDERTHIS READING THE SECTION SEEMS ONEROUS AND
THAT MORE NORMAL OPTIONS SUCH AS PERMIT MODIFICATIONS AND COMPLIANCE
SCHEDULES OUGHT TO BE AVAILABLE. EPA HAS REDRAFTED SECTION 122.5(C) TO
CLARIFY THAT ISSUANCE OF A NEW PERMIT WITH APPROPRIATE CONDITIONS
REMAINS AN OPTION AVAILABLE TO THE REGIONAL ADMINISTRATOR IN THIS
SITUATION.
(2) A LARGE NUMBER OF COMMENTERS NOTED THE POSSIBILITY UNDER PROPOSED
SECTION 122.7(6) THAT A FEDERALLY-ISSUED PERMIT MIGHT LAPSE AFTER
TRANSFER OF A PROGRAM TO A STATE AND EXPRESSED CONCERN THAT A PERMITTEE
MIGHT BE FORCED TO CLOSE DOWN OR OPERATE ILLEGALLY WITHOUT A PERMIT
THROUGH NO FAULT OF ITS OWN. SEVERAL SUGGESTED THAT STATES OUGHT TO BE
REQUIRED TO HAVE SOME SORT OF AUTOMATIC REISSUANCE AUTHORIT- OR A
PROVISION FOR EXTENSIONS SIMILAR TO THE FEDERAL ADMINISTRATIVE PROCEDURE
ACT, PERHAPS AS A CONDITION OF PROGRAM APPROVAL UNDER PART 123. EPA HAS
REWRITTEN THESECTION TO EMPHASIZE THAT STATES MAY CONTINUE
FEDERALLY-ISSUED RCRA, UIC, OR NPDES PERMITS WHICH EXPIRE WHILE UNDER
STATE ADMINISTRATION IF ADEQUATE LEGAL AUTHORITY EXISTS TO DO SO.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 013 OF 225
COSTLE DM ADMINISTRATOR
EPA
113512
REGULATIONS
EPA BELIEVES THAT IT IS INAPPROPRIATE TO REQUIRE STATES TO
EXTEND FEDERALLY ISSUED PERMITS.
IN EVALUATING WHETHER STATES SHOULD BE REQUIRED TO HAVE AN AUTOMATIC
CONTINUATION MECHANISM LIKE THE ONE PROVIDED BY THE FEDERAL
ADMINISTRATIVE PROCEDURE ACT, EPA APPLIED CRITERIA SIMILAR TO THOSE USED
IN DETERMINING THE OTHER REQUIREMENTS FOR AUTHORIZATION OF STATE
PROGRAMS; THAT IS, WHETHER THE REQUIREMENT IS NECESSARY TO PROVIDE (1)
EQUIVALENT ENVIRONMENTAL PROTECTION, (2) CONSISTENCY WITH FEDERAL
REGULATIONS, (3) ADEQUATE ENFORCEABILITY, AND (4) PUBLIC PARTICPATION.
USING THESE CRITERIA EPA DETERMINED THAT CONTINUATIN OF PERMITS BY
STATES SOULD NOT BE REQUIRD FOR PROGRAM APPROVAL. IN ADDITION, IT IS
QUESTIONABLE WHETHER EPA COULD IMPOSE SUCH A REQUIREMENT IN VIEW OF THE
FACT THAT FAILURE TO CONTINUE PERMITS COULD BE CONSIDERED A "MORE
STRINGENT" STATE PROGRAM FEATURE.
OF COURSE, STATES RECEIVING PROGRAM AUTHORITY ARE ENCOURAGED TO
COORDIANTE TRANSFERS OF PERMITS WITH EPA AND TO EXPEDITE PERMIT
PROCESSING IN SITUATIONS WHERE THE PERMIT PROCESSING IN SITUATIONS WHERE
THE PERMIT HAS BEEN EXTENDED UNDER THE FEDERAL APA AND THE STATE HAS NO
SIMILAR ADMINISTRATIVE EXTENSION PROVISIONS. IT IS ANTICIPATED THAT
SUCH SITUATIONS WILL BE RARE. THE MORE COMMON SITUATION COVERED BY THIS
PROVISION -- NAMELY, WHEN A PERMIT WHICH HAS NOT BEEN FEDERALLY EXTENDED
IS TRANSFERRED TO A STATE AND THEN EXPIRES -- CAN ONLY BE REMEDIED BY
TIMELY PROCESSING OF A RENEWAL APPLICATION BY THE STATE OR EXISTENCE OF
A STATE EQUIVALENT TO THE FEDERAL ADMINISTRATIVE PROCEDURE ACT.
(3) ONE COMMENTER ARGUED THAT AUTOMATIC CONTINUATION UNDER THIS
SECTION SHOULD NOT INSULATE AN NPDES DISCHARGER FROM VIOLATION OF A
STATUTORY DEADLINE WHICH INTERVENES PRIOR TO PERMIT RENEWAL. EPA
BELIEVES IT LACKS LEGAL AUTHORITY TO ADOPT THIS INTERPRETATION. UNDER
SECTION 402(K), THE STATUTORY DEADLINES IN THECLEAN WATER ACT ARE NOT
INDEPENDENTLY ENFORCEABLE BUT MUST BE EMBODIES IN THE PERMIT, HOWEVER,
UNDERSECTIONS 122.62 (ESTABLISHING NPDES PERMIT CONDITIONS) AND 122.10
(COMPLIANCE SCHEDULES), NPDES PERMITS ARE REQUIRED TO BE WRITTEN TO
ASSURE COMPLIANCE WITHIN THE CWA STATUTORY DEADLINES, CONSEQUENTLY, ANY
PERMITTEE WHOSE PERMIT IS CONTINUED BEYOND THE DEADLINE IS STILL SUBJECT
TO ENFORCEMENT FOR NONCOMPLIANCE WITH ITS CONTINUED PERMIT.
(1) SOME COMMENTERS CHALLENGED EPA'S LEGAL AUTHORITY TO ESTABLISH
SIGNATORY AND CERTIFICATION REQUIREMENTS AT ALL. CLEARLY, THE RESOURCE
CONSERVATION AND RECOVERY ACT, THE SAFE DRINKING WATER ACT, AND THE
CLEAN WATER ACT EACH REQUIRE PROGRAMS FOR ISSUING PERMITS AND GIVE THE
ADMINISTRATOR RULEMAKING AUTHORITY TO PRESCRIBE REGULATIONS TO ESTABLISH
THEM. A MECHANISM REQUIRING APPLICATIONS FOR PERMITS HAS BEEN CHOSEN IN
MOST INSTANCES, ALTHOUGH NOT ALWAYS (FOR EXAMPLE, PERMITS BY RULE,
GENERAL PERMITS), BECUASE IN MOST CASES APPLICATIONS ARENECESSARY TO
DETERMINE APPROPRIATE PERMIT CONDITIONS. IN ADDITION, EACH OF THE ABOVE
STATUTES ESTABLISHES AUTHORITY FOR REQIRING SUBMISSION OF INFORMATION IN
APPLICATIONS OR OTHER REPORTS. EPA BELIEVES THAT THIS DUTY RUNS BOTH TO
THE CORPORATE OR OTHER BUSINESS ENTITY AND TO THE INDIVIDUAL WHO SUBMITS
THE APPLICATION ON ITS BEHALF. THE CERTIFICATION ENSURES THAT THE
SIGNER OF THE APPLICATION WILL BE AWARE OF, AND WILL MEET, THE LEGAL
STANDARD WHICH WOULD BE APPLICABLE TO HIM OR HER AND TO THE CORPORATION
IN ANY EVENT.
(2) THE MAJORITY OF THE COMMENTERS WHO READ PROPOSED SECTION 122.5
(NOW SECTION 122.6) OBJECTED TO THE REQUIREMENT THAT COPORATE VICE
PRESIDENTS SIGN AND CERTIFY PERMIT APPLICATIONS. COMMENTERS ARGUED THAT
A LARGE CORPORATION COULD REQUIRE NUMEROUS PERMITS, AND THATTHE POSITION
AND RESPONSIBILITIES OF A VICE PRESIDENT OF A LARGE CORPORATION MAY MAKE
IT DIFFICULT AND TIME CONSUMING FOR SUCH A PERSON TO "BECOME FAMILIAR"
WITH THE INFORMATION IN PERMIT APPLICATIONS AND TO PERSONALLY MAKE
"INQUIRY OF THOSE PERSONS IMMEDIATELY RESPONSIBLE FOR OBTAINING THE
INFORMATION." THE PROPOSED CERTIFICATION REQUIRED THESE ACTS.
THSE OBJECTIONS RECEIVED A GREAT DEAL OF ATTENTION, AND SINCE THE
PROPOSAL EPA HAS ATTEMPTED TO DEVISE A NUMBER OF DIFFERING SOLUTIONS
THORUOGH REVISIONS TO THE SIGNATORIES SECTION. IN THE END THESE
ALTERNATIES HAVE ALL BEEN FOUND WANTING, AND THE FINAL SECTION RETAINS
THE PRINCIPAL FEATURESOF THE PROPOSAL, WITH ONLY SOME MINOR CHANGES.
ONE ALTERNATIGVE WHICH EPA EXAMINED WAS TO ADOPT SOME COMMENTERS
SUGGESTIONS THAT A CORPORATE OFFICIAL IMMEDIATELY RESPONSIBLE FOR THE
PREPARATION OF THE APPLICATION (SUCH AS A PLANT MANAGER), RATHER THAN A
PRINCIPAL EXECUTIVE OFFICER, BE ALLOWED TO CERTIFY FAMILIARITY WITH THE
INFORMATION CONTAINED IN THE APPLICATION HOWEVER, EPA DETERMINED THAT A
SIGNATURE BY A PRINCIPAL EXECUTIVE OFFICER WILL ALWAYSBE NECESSARY, BOTH
TO ENSURE AN ADEQUATE LEVEL OF CORPORATE LIABILITY AND TO ENSURE A HIGH
LEVEL OF CONCERN WITH AND RESPONSIBILTY FOR THE CORPORATION'S COMPLIANCE
WITH ENVIRONMENTAL LAWS. THIS NECESSITY REMAINS THE SAME EVEN IF THE
CONTENTS OF THE CERTIFICATION COULD BE CHANGED SOMEWHAT TO REMOVE THE
REQUIREMENT TO CERTIFY "FAMILIARITY." THEREFORE, THE ALTERNATIVE WOULD
HAVE REQUIRED A "DUAL SIGNATORY" SCHEME, ONE SIGNATURE BY THE PREPARER
AND ONE BY THE PRINCIPAL EXECUTIVE OFFICER. BECAUSE IT WOULD BE
NECESSARY TO ENSURE THE SAME LEVEL OF CORPORATE LIABILITY, THE
CERTIFICATIONS WOULD BE ALTERED VERY LITTLE FROM THE PROPOSAL. IN
ADDITION, TO AVOID POSSIBLY MAKING THE REQUIRMENTS MORE ONEROUS RATHER
THAN LESS, THEDUAL SCHEME WOULD HAVE TO BE OPTIONAL. FINALLY, IT WOULD
HAVE BEEN AVAILABLE TO CORPORATIONS ONLY, AND AS IN THEPROPOSAL, WOULD
HAVE APPLIED ONLY TO APPLICATIONS, BECAUSE THE PROPOSED "AUTHORIZED
REPRESENTATIVE" MECHANISM FOR REPORTS WOULD STILL BE AVAILABLE.
AFTER DRAFTING A SIGNATORIES SECTION WHICH ADOPTED THE APPROACH, EPA
FOUND THAT NEGLIGIBLE IMPROVEMENTS WERE MADE ATTHE EXPENSE OF A GREAT
DEAL OF COMPLEXITY WHICH WAS NOT LIKELY TO BE RECEIVED FAVORABLY. SOME
OTHER SOLUTIONS WHICH WERE ATTEMPTED AND WHICH SUFFERED FROM SIMILAR
DEFECTS INVOVLED DISTINGUISHING CORPORATIONS ON THE BASIS OF THEIR
CORPORATE STRUCTURE, THEIR GEOGRAPHIC DISPERSION, OR SIMILAR FACTORS.
CONSEQUENTLY, EPA HAS RETAINED THE REQUIREMENT WHICH APPEARED IN THE
PROPOSAL FOR A SIGNATURE AND CERTIFICATION BY ONE PRINCIPAL EXECUTIVE
OFFICER AS THE SIMPLEST REQUIREMENT TAHT IS ADEQUATE.
(3) SOME COMMENTERS QUESTIONED WHY IT SHOULD BE NECESSARY TO
DISTINGUISH BETWEEN APPLICATIONS AND OTHER SUBMISSINS AND SUGGESTED THAT
IF REPOTS CAN BE SIGNED BY AN AUTHORIZED REPRESENTATIVE APPLICATIONS
SHOULD BE ALSO. EPA FEELS THAT THE DISTINCTION IS A VALID ONE. A
PERMIT APPLICATION IS NEEDED TO DETERMINE WHETHER TO ISSUE A "PERMIT"
WHICH ESTABLISHES THE PRIVILEGES AND DUTIES OF THE PERMITTEE. IN THE
CASE OF A CORPORATION OR OTHER BUSINESS ENTITY, THE ENTITY IS THE
"PERSON" WITH THE PRIVILEGES AND DUTIES. THE PERMIT APPLICATION
THEREFORE NEEDS TO BE SIGNED BY AN INDIVIDUAL WITH THE CAPACITY TO SPEAK
FOR THAT CORPORATION OR OTHER ENTITY. THIS IS ALSO TRUE BECAUSE THE
APPLICATION IN MANY CASES CONTAINS INFORMATION WHICH ITSELF BINDS THE
CORPORATION ONCE THE PERMIT IS ISSUED, EITHER THROUGH INCORPORATIONIN
THE PERMIT (AS IN THE CASE OF CONTINGENCY, CLOSURE OR POST-CLOSURE
PLANTS FOR RCRA AND FOR CERTAIN (UIC FACILITIES) OR THROUGH ESTABLISHING
PREDICTED LEVELS OF USE OR DISCHARGED OF CERTAIN TOXIC POLLUTANTS (AS IN
THE CASE OF CERTAIN NPDES FACILITIES.)
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 014 OF 225
COSTLE DM ADMINISTRATOR
EPA
113513
REGULATIONS
REPORTS ON THE OTHER HAND ARE USUALLY REQUIRED BY THE PERMIT AND
INVOLVE MONITORING REQUIREMENTS OR REPORTING OF INSTANCES OF
NONCOMPLIANCE. HAVING ESTABLISHED THE ENTITY'S RESPONSIBILITY FOR
SUBMITTING THESE REPORTS IN THE PERMIT, IT IS NO LONGER NECESSARY TO
REQUIRE AN EXECUTIVE OFFICER TO SIGN THEM EACH TIME. FURTHERMORE,THE
REPORTS USUALLY REQUIRE FAMILIARITY WITH PARTICULAR POINTS, RATHER THAN
AN UNDERSTANDING AND FAMILIARITY WITH THE CORPORATE ENTERPRISE AS A
WHOLE. FINALLY, THIS INFORMATION GENERALLY DOES NOT INVOLVE THE
COMPLEXITY OF MANY OF THE ITMES REQUIED IN APPLICATIONS OR REQUIRE A
HIGH LEVEL OF CORPORATE CONSULTATION AND COMMITMENT AS IN THE CASE, FOR
EXAMPLE, OF CONTINGENCY PLANS OR CLOSURE PLANS.
AS IN THE PROPOSAL, HOWEVER, EPA HAS MADE AN EXCEPTION FOR CLASS II
WELLS APPLYING FOR PERMITS UNDER THE UIC PROGRAM. CLASS II WELL PERMIT
APPLICATIONS MAY BE SIGNED BY AN AUTHORIZED REPRESENTATIVE. THE REASON
FOR THIS EXCEPTION IS THAT CLASS II WELLS ARE LARGE IN NUMBER YET , AS A
GROUP, MUCH LESS COMPLEX THAN, FOR EXAMPLE, HAZARDOUS WASTE FACILITIES
OR MOST POINT SOURCE DISCHARGERS. WHILE EPA HAS DETERMINED THAT CLASS
II WELLS SHOULD BE REGULATED UNDER THE UIC PROGRAM, SEVERAL ATTEMPTS
HAVE BEEN MADE TO MAKE SURE THAT THIS REGULATION IS NO MORE BURDENSOME
THAT NEEDD TO PROTECT THE ENVIRONMENT. FOR A FURTHER DISCUSSION OF
REGULATION OF CLASS II WELLS, SEE THE PREAMBLES TO SUBPART C AND TO PART
146. FOR THE REAONS DISCUSSED IN THOSE PLACES, CLASS II WELLS HAVE BEEN
DISTINGUISHED FROM CLASS II WELLS OR OTHER WELLS, AND FOR THE SAME
REASONS THE EXCEPTION TO THE SIGNATORY REQRUIEMENT THAT APPLIES TO CLASS
II WELLS HAS NOT BEEN EXTENDED TO OTHER WELLSUNDER THE UIC PROGRAM.
(4) EPA HAS MADE A NUMBER OF CHANGES FROM THE PROPOSAL TO MAKE THE
AUTHORIZED REPRESENTATIVE MECHANISM WORK BETTER. FIRST, THE SECTION HAS
BEEN REWORDED SLIGHTLY TO EMPHASIZE THAT DELEGATION OF THE AUTHORITY TO
SIGN INFORMATION REPORTS AND CLASS II WELL PERMIT APPLICATIONS MAY BE TO
A POSITION RATHER THAN TO A SPECIFIC INDIVIDUAL, SOME POSSIBLE EXAMPLES
OF POSITIONS WHICH CAN BE AUTHORIZED ARE GIVEN, BUT ANY POSITION
AUTHORIZED MUST BE ONE HAVING "RESPONSIBILITY FOR THE OVERALL OPERATION
OF THE FACILITY." THE WORDING CLARIFICATION DOES NOT REPRESENT A CHANGE
FROM PRESENT NPDES POLICY.
SECOND, SEVERAL COMMENTERS OBJECTED TO THE NEED TO SUBMIT NEW
REPORTS. AUTHORIZATION OF A POSITION SHOULD SOLVE THIS PROBLEM IN MANY
INSTANCES. IN ADDITION, THE SECTION HAS BEEN REWRITTEN TO CLARIFY ITS
APPLICABILITY AND TOALLOW A NEW AUTHORIZATION TO BE SUBMITTED
CONCURRENTLY WITH THE NEXT REPORT WHICH REQUIRES A CERTIFICATION, RATHER
THAN IMMEDIATELY EVERY TIME A CHANCE HAS OCCURED. FINALLY, CONTRARY TO
SOME COMMENTERS' READING, EPA DOES NOT INTEND TO PRECLUDE AUTHORIZATION
OF MORE THAN ONE INDIVIDUAL OCCUPYING A POSITION OF RESPONSIBILITY FOR
THE OVERALL OPERATION OF THE FACILITY. EPA DOES NOT AGREE, HOWEVER,
THAT NO AUTHORIZATION AT ALL SHOULD BE REQUIRED. A WRITTEN AUTHORIZATION
SUBMITTED TO THE DIRECTOR IS NECESSARY TO ENSURE THAT THE PRINCIPAL
EXECUTIVE OFFICER OR OTHER HIGH LEVEL OFFICIAL MAINTAINS THE SAME LEVEL
OF LEGAL ACCOUNTABILITY FOR THE ACCURACY OF THE INFORMATION SUBMITTED AS
HE OR SHE WOULD HAVE HAD WITHOUT EXERCISING THE AUTHORIZATION.
(5) BECAUSE EPA PERMIT APPLICATIONS WILL NOW CONSIST OF GENERAL
FORM WITH A NUMBER OF ATTACHMENT, WITH ONLY ONE CERTIFICATION,
THE CERTIFICATION STATEMENT HAS BEEN AMENDED TO REQUIRE
EXAMINATION OF AND FAMILIARITY WITH THE INFORMATION SUBMITTED "IN
THIS AND ALL ATTACHED DOCUMENT."
(1) ORGANIZATION. PROPOSED SECTION 122.11 (NOW SECTION 122.7) SETS
FORTH "STANDARD" OR "BOILERPLATE" CONDITIONS WHICH ARE TO APPEAR IN ALL
PERMITS, IN ORDER TO MAKE THESE CONDITIONS TRULY "STANDARD" CONDITIONS
WHICH CAN BE INSERTED WITHOUT ALTERATION IN ALL PERMITS FOR ALL THE
PROGRAMS, PROGRAM-SPECIFIC ELEMENTS WHICH APPEARED IN THE PROPOSAL HAVE
BEEN SEPARATED AND PLACED IN THE INDIVIDUAL PROGRAM SUBPARTS.
ACCORDINGLY, THE RCRA, UIC, NPDES' AND 404 SUBPARTS NOW EACH HAVE A
SECTION SETTING FORTH "ADDITIONAL CONDITIONS" APPLICABLE TO ALL PERMITS
FOR EACH RESPECTIVE PROGRAM; SEE SECTIONS 122.28 (RCRA), 122.41 (UIC),
122.61 AND 122.62 (NPDES), AND 123.97(404). THESE PROGRAM-SPECIFIC
"BOILERPLATE" SECTIONS HAVE BEEN WRITTEN TO CORRESPOND TO THE
ORGANIZATION OF NEW SECTION 122.7 SO THAT THEY CAN BE EASILY
INCORPORATED BY THE PERMIT WRITER. SEE TABLE IV.
TABLE IV. -- STANDARD PERMIT CONDITIONS
TABLE OMITTED
NEW SECTION 122.7 AND THE CORRESPONDING SUBPART SECTIONS REFERRED TO
ABOVE SET FORTH ALL CONDITIONS WHICH DO NOT VARY FROM PERMIT TO PERMIT.
THE MECHANISM FOR INCLUDING PERMIT CONDITIONS WHICH DO VARY DEPENDING ON
THE FACILITY OR ACTIVITY IN QUESTION IS PROVIDED IN SECTION 122.8
(PROPOSED SECTION 122.13), "ESTABLISHING PERMIT CONDITIONS." SECTIN
122.8 REFERS TO SUBPART A SECTIONS ON ESTABLISHING VARIABLE PERMIT TERMS
(FOR EXAMPLE, ESTABLISHING COMPLIANCE SCHEDULES ), AND TO THE SECTIONS
OF THE PROGRAM SUBPARTS WHICH INDICATE HOW VARIABLE TERMS ARE CALCULATED
FOR EACH PROGRAM. THE PRUPOSE OF THIS ORGANIZATION IS TO PROVIDE A
CLEAR ROADMAP TO THE PERMIT WRITER AND IS DISCUSSED MOREFULLY IN TABLE I
AND ACCOMPANYING TEXT OF THIS PREAMBLE. BECAUSE, AS PROVIDED IN FINAL
SECTION 1221.13, IN MOST CASES "COMPLIANCE WITH A PERMIT IS COMPLIANCE
WITH THEAPPROPRIATE ACT" IT IS IMPORTANT THAT ALL REQUIREMENTS BINDING
UPON PERMITEES BE ADEQUATELY REFERENCED IN THE PERMIT DOCUMENT. THE
FINAL REGULATIONS HAVE BEEN DRAFTED TO HELP ENSURE THIS RESULT.
(2) INCORPORATION BY REFERENCE.
SEVERAL COMMENTERS STATED THAT THE STANDARD PERMIT CONDITIONS SHOULD
NOT BE "INCORPORATED BY REFERENCE" IN A PERMIT.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 015 OF 225
COSTLE DM ADMINISTRATOR
EPA
113514
REGULATIONS
UNDER FINAL SECTION 122.7 PERMIT CONDITIONS MAY STILL BE INCORPORATED
BY REFERENCE. HOWEVER, EPA HAS PROVIDED PROTECTION TO PERMITTEES BY
REQUIRING THAT, IF CONDITIONS ARE INCORPORATED BY REFERENCE, THE
REFERENCE MUST INCLUDE A SPECIFIC CITATION TO THESE REGULATIONS OR TO
THE CORRESPONDING STATE REGULATIONS. EPA DOES NOT BELIEVE THAT IT IS
POSSIBLE TO STATE ALL PERMIT REQUIREMENTS IN ALL PERMITS WITHOUT USING
REFERENCES IN SOME INSTANCES. FOR EXAMPLE, SECTION 122.60(C)(1)
REQUIRES AS A STANDARD PERMIT CONDITION FOR ALL NPDES PERMITS THAT
MONITORING BE CONDUCTED ACCORDING TO THE TEST PROCEDURES APPROVED UNDER
40 CFR PART 136 UNLESS ALTERNATIVE TEST PROCEDURES ARE SPECIFIED IN THE
PERMIT. PART 136 PROCEDURES ARE IN MANY INSTANCES QUITE DETAILED AND
REQUIRING THESE PROCEDURES TO BE RESTATED IN THE PERMIT VERBATIM WOULD
NOT BE JUSTIFIED IN VIEW OF THE INCREASED PAPERWORK BURDEN IT WOULD
IMPOSE ON PERMIT WRITERS.
(3) DUTY TO COMPLY. SECTION 122.7(A) IS ESSENTIALLY A RESTATEMENT OF
PROPOSED SECTION 122.11(A). THE DUTY OF AN NPDES PERMITTEE TO COMPLY
WITH NEWLY PROMULGATED TOXIC EFFLUENT STANDARDS OR PROHIBITIONS UNDER
SECTION 307(A) OF CWA, WHICH APPEARED IN THE PROPOSAL IN SECTION 122.69,
HAS BEEN MOVED TO THE CORRESPONDING "DUTY TO COMPLY" NPDES SECTION,
SECTION 122.60(A), BECAUSE IT IS ADDRESSED TO PERMITTEES. ALSO, THE
CORRESPONDING RCRA (SECTION 122.28(A)) AND UIC (SECTION 122.41(A))
PROVISIONS REFLECT THE FACT THAT EMERGENCY PERMITS ISSUED UNDER THESE
PROGRAMS MAY ACT AS A LIMITED MODIFICATION OF EXISTING PERMIT
REQUIREMENTS.
(4) DUTY TO REAPPLY. EPA HAS ADDED SECTION 122.7(B) TO MAKE SURE
THAT PERMITTEES ARE INFORMED OF THEIR DUTY TO REAPPLY FOR A PERMIT.
STATE AND EPA PERMITS MAY INCORPORATE REAPPLICATION DEADLINES AT THIS
POINT IF DESIRED.
(5) DUTY TO HALT OR REDUCE ACTIVITIES. PROPOSED SECTION 122.11(J)
(NOW SECTION 122.7(C) REQUIRED THE PERMITTEE TO "HALT OR REDUCE ITS
BUSINESS ACTIVITIES WHENEVER AND TO THE EXTENT NECESSARY TO MAINTAIN
COMPLIANCE WITH THE TERMS OF A PERMIT." THIS REQUIREMENT RECEIVED MANY
ADVERSE COMMENTS. IN GENERAL, COMMENTERS ARGUED THAT IN MANY CASES
NONCOMPLIANCE WITH PERMIT CONDITIONS MAY NOT BE SERIOUS ENOUGHT TO
JUSTIFY HALTING OR REDUCING REGULATED ACTIVITIES, AND THEREFORE THAT THE
REQUIREMENT SHOULD BE: DELETED, DISCRETIONARY, LIMITED TO IMMINENT AND
SUBSTANTIAL ENDANGERMENT OF THE ENVIRONMENT, DELETED IN FAVOR OF
ASSESSING ENFORCEMENT PENALTIES, OR SHOULD ALLOW FOR EXEMPTIONS. SOME
COMMENTERS FOUND THE REQUIREMENT INCONSISTENT WITH THE PERFORMANCE-BASED
STANDARDS WHICH ARE THE PRIMARY MECHANISM FOR PROTECTION OF THE
ENVIRONMENT USED BY THE PROGRAMS IN THESE REGULATIONS, ARGUING THAT EPA
HAS NO AUTHORITY TO ENFORCE OR REQUIRE ANYTHING BUT LIMITS "AT THE END
OF THE PIPE."
EPA DOES NOT INTEND TO ENFORCE A DUTY TO HALT OR REDUCE REGULATED
ACTIVITIES EVERY TIME ANY PERMIT CONDITION IS VIOLATED. FURTHERMORE,
EPA DOES NOT RULE OUT THE POSSIBILITY THAT IN SOME INSTANCES HALTING
ACTIVITIES COULD CAUSE MORE DAMAGE THAN TO CONTINUE THEM, THAT IT MAY BE
NECESSARY TO CONTINUE OPERATIONS TO LOCATE THE PROBLEM, THAT LESS
DRASTIC MEANS FOR ASSURING PERMIT COMPLIANCE MAY BE APPROPRIATE IN SOME
CIRCUMSTANCES, OR, THAT FOR CERTAIN INSTANCES OF TRIVIAL NONCOMPLIANCE,
IT MIGHT BE INAPPROPRIATE FOR A PERMITTEE TO HALT ITS OPERATIONS.
HOWEVER, EPA WISHES TO CLEARLY ESTABLISH FOR EVERY PERMITTEE THE
PRINCIPLE THAT A PERMITTEE HAS A DUTY TO COMPLY WITH ITS PERMIT, AND
THAT THIS DUTY REQUIRES REDUCING OR HALTING ACTIVITIES IF NO OTHER MEANS
OF COMPLYING IS POSSIBLE. A PERMITTEE CAN NOT "BUY" A RIGHT TO DAMAGE
THE ENVIRONMENT BY VIOLATING THE PERMIT AND BEING ASSESSED CIVIL
PENALTIES AS A RESULT.
EPA HAS REWRITTEN THE PROVISION TO STATE THAT "IT SHALL NOT BE A
DEFENSE FOR THE PERMITTEE IN AN ENFORCEMENT ACTION THAT IT WOULD HAVE
BEEN NECESSARY TO HALT OR REDUCE THE PERMITTED ACTIVITY IN ORDER TO
MAINTAIN COMPLIANCE WITH THE CONDITIONS OF THIS PERMIT". THIS REWORDING
OF THE DUTY EMPHASIZES ITS RELEVANCE TO ENFORCEMENT ACTIONS, AND
ELIMINATES THE APPEARANCE OF DOUBLE ENFORCEMENT (ONCE FOR THE PERMIT
VIOLATION, AND AGAIN FOR NOT REDUCING ACTIVITY OR SHUTTING DOWN). OF
COURSE, PERMITTEES MUST USE THEIR JUDGMENT IN DETERMINING HOW TO RESPOND
TO NONCOMPLIANCE. THEY SHOULD CONSIDER THE POTENTIAL SERIOUSNESS OF THE
NONCOMPLIANCE. AND THE DAMAGE IT IS CAUSING. IF NONCOMPLIANCE WITH THE
PERMIT IS SERIOUS ENOUGH TO WARRANT ENFORCEMENT ACTION, NO PERMITTEE
WILL BE ALLOWED TO ARGUE THAT COMPLIANCE WOULD HAVE BEEN UNREASONABLE
BECAUSE IT WOULD HAVE REQUIRED A HALT OR REDUCTION OF THE REGULATED
ACTIVITY.
SEVERAL COMMENTERS NOTED THAT PROPOSED SECTION 122.11(J) WAS QUITE
SIMILAR TO PROPOSED SECTION 122.68(E), WHICH APPLIED TO NPDES. THE
NPDES PROVISION NOW APPEARS AT SECTION 122.60(B) AND IS DISCUSSED IN THE
PREAMBLE ACCOMPANYING THAT SECTION.
(6) DUTY TO MITIGATE. SECTION 122.7(D) RESTATES PROPOSED SECTION
122.11(I). FOR THE REASONS DISCUSSED UNDER (5) ABOVE, EPA REJECTS THE
ARGUMENT THAT IT MAY NOT REQUIRE PERMITTEES TO MITIGATE THE DAMAGE
CAUSED BY NONCOMPLIANCE WITH THEIR PERMITS. IT SHOULD BE NOTED THAT IN
SOME CIRCUMSTANCES NONCOMPLIANCE WITH THIS PERMIT CONDITION MAY BE USED
TO ESTABLISH WILLFULNESS IN AN ENFORCEMENT ACTION.
(7) PROPER OPERATION AND MAINTENANCE. THE FIRST SENTENCE OF PROPOSED
SECTION 122.11(G) (NOW SECTION 122.7(E)) REQUIRED THE PERMITTEE TO
"MAINTAIN IN GOOD WORKING ORDER AND OPERATE EFFICIENTLY ALL FACILITIES
AND SYSTEMS OF TREATMENT OR CONTROL WHICH ARE INSTALLED OR USED BY THE
PERMITTEE TO ACHIEVE COMPLIANCE WITH THE TERMS AND CONDITIONS OF THE
PERMIT." THE SECOND SENTENCE FURTHER DEFINED "PROPER OPERATION AND
MAINTENANCE" AS INCLUDING "EFFECTIVE PERFORMANCE BASED ON DESIGNED
FACILITY REMOVALS, ADEQUATE FUNDING, EFFECTIVE MANAGEMENT, ADEQUATE
OPERATOR STAFFING AND TRAINING, AND ADEQUATE LABORATORY AND PROCESS
CONTROLS INCLUDING APPROPRIATE QUALITY ASSURANCE PROCEDURES." WE HAVE
REVISED THE FIRST SENTENCE BY SUBSTITUTING THE PHRASE "PROPER OPERATION
AND MAINTENANCE" FOR "MAINTAIN IN GOOD WORKING ORDER AND OPERATE
EFFICIENTLY" IN ORDER TO PARALLEL THE SECOND SENTENCE, WHICH GIVES
EXAMPLES OF PROPER OPERATION AND MAINTENANCE.
MANY COMMENTERS EXPRESSED DOUBT WHETHER EPA IS LEGALLY AUTHORIZED TO
REQUIRE PROPER OPERATION AND MAINTENANCE OF FACILITIES. THIS
REQUIREMENT IS CLEARLY AUTHORIZED FOR NPDES PERMITTEES BY SECTION
402(A)(2) OF CWA WHICH REQUIRES THE ADMINISTRATOR TO PRESCRIBE PERMIT
CONDITIONS WHICH WILL ASSURE COMPLIANCE WITH THE REQUIREMENTS OF CWA
SECTION 402(A)(1). EPA SIMILARLY BELIEVES THAT A PROPER OPERATION AND
MAINTENANCE REQUIREMENT IS AUTHORIZED BY SECTION 1421(B) OF SDWA TO
ASSURE COMPLIANCE WITH REQUIREMENTS IN UIC PERMITS TO PROTECT
UNDERGROUND SOURCES OF DRINKING WATER, AND BY SECTION 3004(6) OF RCRA
WHICH REQUIRES EPA TO ESTABLISH "MAINTENANCE AND "OPERATION" STANDARDS.
ONE COMMENTER ARGUED THAT IF A PERMITTEE CAN MEET ITS PERMIT
REQUIREMENTS BY OPERATING ITS TREATMENT OR CONTROL SYSTEMS AT LESS THAT
OPTIMUM EFFICIENCY, RATHER THAN AT "DESIGNED FACILITY REMOVALS," IT
SHOULD BE ALLOWED TO DO SO. EPA AGREES AND HAS DELETED THAT EXAMPLE
FROM THE SECOND SENTENCE.
OTHER COMMENTERS ARGUED THAT THE PHRASE "EFFECTIVE MANAGMENT" AS AN
EXAMPLE OF "PROPER OPERATION" AND MAINTENANCE" WAS UNNECESSARY.
OVERBROAD, AND WOULD RESULT IN AN INTRUSION INTO INTERNAL PLANT
MANAGEMENT. ALTHOUGH EPA STILL BELIEVES EFFECTIVE MANAGEMENT
REQUIREMENTS ARE AUTHORIZED BY CWA, EPA AGREES, IN PART, THAT THE TERM
"EFFECTIVE MANAGEMENT" MAY BE OVERBROAD AS A GENERALLY APPLICABLE PERMIT
CONDITION AND HAS DELETED IT FROM THE SECOND SENTENCE.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 016 OF 225
COSTLE DM ADMINISTRATOR
EPA
113515
REGULATIONS
IN RESPONSE TO COMMENTS FEARING THAT PROPOSED SECTION 122.11(G) WOULD
REQUIRE OPERATION OF BACKUP OR AUXILLIARY FACILITIES AND SYSTEMS AT ALL
TIMES, EPA HAS ADDED A NEW SENTENCE TO FINAL SECTION 122.7(E) TO CLARIFY
THAT THIS PARAGRAPH REQUIRES THE OPERATION OF THOSE FACILITIES ONLY WHEN
NECESSARY TO ACHIEVE COMPLIANCE WITH THE PERMIT.
(8) PERMIT ACTIONS. PROPOSED SECTION 122.11(D) STATED THAT "UNLESS
AND UNTIL A PERMIT IS MODIFIED OR REVOKED AND REISSUED, A PERMITTEE MUST
COMPLY WITH THE TERMS AND CONDITIONS OF THE EXISTING PERMIT WHETHER OR
NOT THE EXISTING PERMIT WOULD ALLOW THE PERMITTEE TO BEGIN THE ACTIVITY
DESCRIBED IN PARAGRAPH (C) OF THIS SECTION." THE PARAGRAPH REFERRED TO
REQUIRED NOTIFICATION OF PROPOSED ACITIVITIES WHICH COULD CONSTITUTE
GROUNDS FOR MODIFICATION. COMMENTERS FOUND THIS PROVISION VAGUE AND
OBJECTED THAT IT APPEARED TO PROHIBIT ACTIVITIES OTHERWISE ALLOWED IN
THE PERMIT.
EPA AGREES THAT IT CAN NOT PROHIBIT ACTIVITIES WHICH ARE IN
COMPLIANCE WITH A PERMIT. THE INTENT OF THE PROVISION IS TO INFORM
PERMITTEES THAT, SIMPLY BECAUSE A PERMIT MODIFICATION HAS BEEN REQUESTED
OR BECAUSE INFORMATION HAS BEEN REPORTED WHICH MIGHT REQUIRE A CHANGE IN
THE PERMIT, THE PERMIT ITSELF HAS NOT BEEN CHANGED AND MUST BE COMPLIED
WITH. BECAUSE RCRA AND UIC PERMITS CONTAIN CONSTRUCTION AS WELL AS
OPERATING REQUIREMENTS, PERMITTEES SHOULD OBTAIN APPROVAL BEFORE
PHYSICALLY MODIFYING A RCRA OR UIC FACILITY; SEE SECTIONS 122.28 (RCRA)
AND 122.41 (UIC). (SIMILARLY, FOR RCRA FACILITIES UNDER INTERIM STATUS,
SEE SECTION 122.23.) FINAL SECTION 122.7(D) CLARIFIES THE INTENT BY
STATING, "THE FILING OF A REQUEST BY THE PERMITTEE FOR A PERMIT
MODIFICATION REVOCATION AND REISSUANCE, OR TERMINATION DOES NOT STAY ANY
PERMIT CONDITION."
SEVERAL COMMENTERS ARGUED THAT A PERMITTEE SHOULD BE ABLE TO CHANGE
ITS CONDUCT BEFORE APPROVAL OF A PERMIT MODIFICATION. SO LONG AS THE
CHANGE DOES NOT VIOLATE THE REQUIREMENTS OF THE PERMIT, EPA AGREES.
HOWEVER, A PERMITTEE RUNS THE RISK OF ENFORCEMENT ACTION WHENEVER IT
DOES NOT COMPLY WITH ITS PERMIT (SEE SECTION 122.7(A)); THEREFORE, IT
IS IN THE PERMITTEE'S INTEREST TO NOTIFY THE DIRECTOR SUFFICIENTLY IN
ADVANCE FOR THE PERMIT TO BE MODIFIED, IF NECESSARY, TO ALLOW FOR
ANTICIPATED CHANGES IN CONDUCT PRIOR TO THEIR OCCURRENCE. THE
NOTIFICATION COULD CONSTITUTE "NEW INFORMATION" WHICH IS CAUSE FOR
MOIDIFYING A PERMIT UNDER SECTION 122.15(A)(2).
THE REPORTING REQUIREMENTS SUMMARIZED IN PARAGRAPH (1) OF THE
STANDARD CONDITIONS REQUIRE ADVANCE NOTICE OF (1) PLANNED PHYSICAL
ALTERATIONS OR ADDITIONS TO THE PERMITTED FACILITY, AND (2) ANY PLANNED
CHANGES IN THER PERMITTED FACILITY OR ACTIVITY WHICH MAY RESULT IN
PERMIT NONCOMPLIANCE. THESE DUTIES ARE NARROWER THAN IN THE PROPOSAL
AND ARE DISCUSSED BELOW. EPA RECOGNIZES THAT PLANS WILL NOT ALWAYS BE
FORMULATED ENOUGH IN ADVANCE FOR THE PERMIT TO BE MODIFIED PRIOR TO A
CHANGE. WHEN THIS IS THE CASE AND THE CHANGE DOES RESULT IN
NONCOMPLIANCE, THE PERMITTEE WILL NOT BE EXCUSED BY THE FACT THAT NOTICE
HAS BEEN SUBMITTED OR THAT A PERMIT MODIFICATION IS BEING PROCESSED.
SOME COMMENTERS NOTED THAT PROPOSED SECTION 122.11(D) CONTRADICTED
THE PROPOSED PROVISIONS FOR EMERGENCY AND TEMPORARY AUTHORIZATIONS UNDER
RCRA AND UIC SECTIONS 122.28 AND 122.41 NOW CLARIFY THAT A PERMITTEE
NEED NOT COMPLY WITH THE CONDITIONS OF ITS EXISTING PERMIT TO THE EXTENT
AND FOR THE DURATION AUTHORIZED IN AN EMERGENCY PERMIT. ONE EFFECT OF
THIS STATEMENT IS THAT EMERGENCY PERMITS ARE PROCESSED INDEPENDENTLY OF
EXISTING PERMITS AND NOT AS MODIFICATIONS OF THEM, ALTHOUGH THE END
RESULT IS SIMILAR.
(9) PROPERTY RIGHTS. SECTION 122.7(G) REPEATS THE STATEMENT IN
SECTION 122.13(B) (PROPOSED SECTION 122.7(B) THAT A PERMIT IS NOT A
PROPERTY RIGHT. FOR A DISCUSSION OF PERMIT TRANSFERS, SEE THE PREAMBLE
TO SECTION 122.14.
(10) DUTY TO PROVIDE INFORMATION. FINAL PARAGRAPH (H) STATES THE
DUTY OF THE PERMITTEE TO PROVIDE INFORMATION NECESSARY IN DETERMINING
COMPLIANCE OR IN PROCESSING A PERMIT MODIFICATION OR TERMINATION. THIS
ROUGHLY CORRESPONDS TO PROPOSED SECTION 122.13(F), BUT HAS BEEN
BROADENED TO BE COEXTENSIVE WITH THE DIRECTOR'S GENERAL AUTHORITY TO
REQUIRE INFORMATION UNDER RCRA SECTION 3004, SDWA SECTION 1445, AND CWA
SECTION 308.
PROPOSED SECTION 122.11(C), IN ADDITION TO REQUIRING NOTIFICATION OF
ANY ACTIVITY THAT MIGHT GIVE RISE TO CAUSE FOR MODIFICATION, STATED THAT
"THE DIRECTOR MAY REQUIRE A SUBMISSION OF A NEW APPLICATION." THIS
LANGUAGE NO LONGER APPEARS AS A STANDARD PERMIT CONDITION. EPA HAS
AMENDED SECTION 124.5 TO REQUIRE SUBMISSION OF A NEW APPLICATION
WHENEVER A PERMIT IS BEING REVOKED AND REISSUED. THIS IS NECESSARY
BECAUSE IN THAT CASE THE PERMIT IS BEING REISSUED FOR A NEW TERM.
SECTION 124.5 ALSO STATES THAT AN UPDATED APPLICATION MAY BE REQUESTED
BY THE DIRECTOR IN THE CASE OF A PERMIT MODIFICATION. AN UPDATED
APPLICATION MAY BE NECESSARY WHEN, FOR EXAMPLE, A PERMIT IS BEING
EXTENSIVELY REWRITTEN OR WHEN A PERMIT IS BEING MODIFIED TO REFLECT A
TRANSFER IN OWNERSHIP. HOWEVER, IT IS NOT EPA'S INTENT TO REQUIRE A
COMPLETE NEW APPLICATION WHEN NOT ALL OF THE INFORMATION IS NEEDED TO
PROCESS A PERMIT MODIFICATION. LIKEWISE, WHEN INFORMATION IS NEEDED TO
DETERMINE COMPLIANCE, IT WILL BE REQUESTED THROUGH THE GENERAL
INFORMATION GATHERING AUTHORITY AND NOT THROUGH A REQUIREMENT TO SUBMIT
A COMPLETE NEW PERMIT APPLICATION, WHICH CONTAINS QUESTIONS WHICH OFTEN
ARE NOT RELEVANT TO A DETERMINATION OF COMPLIANCE.
(11) INSPECTION AND ENTRY. FINAL PARAGRAPH (I) WAS PROPOSED AS
SECTION 122.11(E). PROPOSED SECTION 122.11(E) SET FORTH REQUIREMENTS
FOR ALLOWING REPRESENTATIVES OF THE DIRECTOR TO ENTER AND INSPECT THE
FACILITY, THE RECORDS THAT ARE REQUIRED TO BE KEPT, AND REGULATED
SUBSTNACES. MANY COMMENTERS WERE CONCERNED THAT CONFIDENTIAL
INFORMATION IS NOT ADEQUATELY PROTECTED WHEN A CONTRACTOR RATHER THAN AN
OFFICER OR EMPLOYEE OF EPA OR A STATE GOVERNMENT CONDUCTS AN INSPECTION.
ALL INFORMATION DISCLOSED DURING AN INSPECTION IS SUBJECT TO THE
BUSINESS CONFIDENTIALITY OF 40 CFR PART 2. A COMPANY MAY ASSERT A CLAIM
OF CONFIDENTIALITY AND IF EPA PROPOSES TO DISCLOSE ANY INFORMATION
COVERED BY SUCH A CLAIM, THE AGENCY GIVES PRIOR NOTICE TO THE SUBMITTER.
THE AGENCY'S PROCEDURES FOR DISCLOSURE TO CONTRACTORS WHO ARE
AUTHORIZED REPRESENTATIVES ARE CONTAINED IN 40 CFR SECTION 2.301(H)
WHICH IS INCORPORATED BY REFERENCE IN SECTIONS 2.302(H) (CWA), 2.304(H)
(UIC) AND 2.305(H) (RCRA). READERS ARE REFERRED TO THESE SECTIONS FOR
THEIR SPECIFIC PROVISIONS. IN ADDITION, 40 CFR SECTION 2.211 PROVIDES
THAT A CONTRACTOR MAY ONLY USE THE INFORMATION AS PROVIDED BY THE
CONTRACT. ANY VIOLATION OF THESE PROVISIONS IS GROUNDS FOR DEBARMENT OR
SUSPENSION; WILLFUL VIOLATION MAY RESULT IN CRIMINAL PROSECUTION. EPA
BELIEVES THAT THESE PROVISIONS FULLY PROTECT CONFIDENTIAL INFORMATION
OBTAINED BY A CONTRACTOR.
SEVERAL COMMENTERS STATED THAT THE PROVISION SHOULD INCORPORATE THE
LEGAL PRINCIPLES SET FORTH IN MARSHALL V. BARLOW'S INC., 436 U.S. 307
(1978), RELATING TO THE NECESSITY FOR PRESENTATION OF A WARRANT UNDER
APPROPRIATE CIRCUMSTANCES. SOME COMMENTERS FEARED THAT BY INCLUDING
ENTRY AND INSPECTION REQUIREMENTS AS A PERMIT CONDITION, EPA MIGHT BE
REQUIREING PERMITTEES TO WAIVE CERTAIN RIGHTS UNDER THE FOURTH AMENDMENT
TO THE UNITED STATES CONSTITUTION. IT IS NOT EPA'S INTENT TO DEPRIVE
ANY PERMITTEE OF ITS FOURTH AMENDMENT RIGHTS AS INTERPRETED BY SUPREME
COURT DECISIONS.
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FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 017 OF 225
COSTLE DM ADMINISTRATOR
EPA
113516
REGULATIONS
HOWEVER, WE HAVE RETAINED THE GENERAL WORDING REQUIRING PRESENTATION
OF CREDENTIALS AND SUCH OTHER DOCUMENT AS MAY BE REQUIRED BY LAW"
BECAUSE OF THE COMPLEXITY AND THE CHANGING NATURE OF THIS AREA OF THE
LAW, AND THE POSSIBILITY THAT ANY PARTICULAR FORMULATION OR CITATION
COULD BE INACCURATE OR INAPPLICABLE.
SEVERAL COMMENTERS ARGUED THAT PROPOSED SUBPARAGRAPHS (E)(3), (4) AND
(5) - CONCERNING ENTRY TO INSPECT FACILITIES, EQUIPMENT AND OPERATIONS,
AND TO SAMPLE AT THE MONITORING POINT SUBSTANCES REQUIRED TO BE
MONITORED - WERE NOT AUTHORIZED BY RCRA, EPA DISAGREES. CONGRESSIONAL
INTENT WAS TO ALLOW FOR MONITORING OF AREAS SURROUNDING THE WASTE
DISPOSAL SITES, AND EPA INSPECTION OF SUCH SITES AND THE SUBSTANCES
MONITORED, TO ENSURE REASONABLE PROTECTION OF HUMAN HEALTH AND THE
ENVIRONMENT. SEE H. REP. 94 1491, 94TH CONG., 2D SESS., PAGE 28. EPA
HAS FOLLOWED THE SUGGESTION OF TWO COMMENTERS AND COMBINED PROPOSED
SUBPARAGRAPHS (E)(4) AND (E)(5).
SOME COMMENTERS SUGGESTED THAT ENTRY UNDER PROPOSED SECTION
122.11(E)(1) SHOULD ALSO BE AT REASONABLE TIMES, AS ARE ACCESS TO COPY,
TO INSPECT, OR TO SAMPLE OR MONITOR. EPA FEELS THAT SUCH A LIMITATION
SHOULD NOT BE INSERTED BECAUSE IT MIGHT GIVE RISE TO ARGUMENTS THAT EPA
IS PRECLUDED FROM INSPECTING WITHOUT NOTICE OR AT UNUSUAL TIMES WHEN IN
FACT DOING SO IS "REASONABLY" NECESSARY TO DETERMINE COMPLIANCE OR
NONCOMPLIANCE.
(12) MONITORING AND RECORDS. THE REQUIREMENT FOR PERMITTEES TO
CONDUCT MONITORING AND KEEP RECORDS, CONTAINED IN SECTION 122.7(J), WAS
PROPOSED IN SECTION 122.11(K). THIS STANDARD PERMIT CONDITION HAS BEEN
REVISED TO INCLUDE REQUIREMENTS WHICH APPEARED IN THE PROPOSED SECTION
ON "RECORDING AND REPORTING OF MONITORING RESULTS" (PROPOSED SECTION
122.14, NOW SECTION 122.11). THE GENERALLY APPLICABLE REQUIREMENTS THAT
MONITORING BE REPRESENTATIVE OF THE MONITORED ACTIVITY, THAT CERTAIN
INFORMATION BE RECORDED, AND THAT RECORDS BE RETAINED FOR AT LEAST 3
YEARS, ARE APPROPRIATELY ADDRESSED TO PERMITTEES IN THE PERMIT DOCUMENT.
THE RECORDS RETENTION REQUIREMENTS HAVE BEEN REVISED SLIGHTLY IN
RESPONSE TO COMMENT. COPIES OF ALL REPORTS REQUIRED BY THE PERMIT, NOT
JUST THE DATA USED IN MONITORING REPORTS, MUST NOW BE RETAINED FOR THE 3
YEAR PERIOD. IN ADDITION, THE REQUIREMENT TO RETAIN RECORDS FOR LONGER
THAN 3 YEARS DURING LITIGATION WILL NO LONGER APPLY AUTOMATICALLY.
COMMENTERS ARGUED THAT PERMITTEES MUST BE GIVEN NOTICE IF RECORDS ARE TO
BE RETAINED FOR LONGER THAN 3 YEARS. THE DIRECTOR WILL NOW HAVE TO MAKE
A REQUEST BEFORE LONGER RETENTION OF RECORDS DURING THE COURSE OF
LITIGATION IS REQUIRED. THIS PROCEDURE WILL GIVE ADEQUATE NOTICE TO THE
PERMITTEE DURING LITIGATION TO THE EXTENT PRESERVATION OF MATERIAL
EVIDENCE IS NOT ALREADY A REQUIREMENT UNDER COMMON LAW. LIKEWISE, THE
DIRECTOR CAN REQUIRE THE PERMITTEE TO RETAIN RECORDS AT ANY OTHER TIME
FOR LONGER THAN 3 YEARS UPON REQUEST, AS IN THE PROPOSAL. EPA BELIEVES
THAT THERE ARE MANY INSTANCES WHEN IT WILL BE IMPORTANT FOR RECORDS TO
BE RETAINED FOR LONGER PERIODS OF TIME, UP TO THE LIFE OF A FACILITY OR
THE POSTCLOSURE PERIOD, AND ADDITIONAL RECORDS RETENTION REQUIREMENTS
ARE SET FORTH IN CORRESPONDING PARAGRAPHS OF SECTIONS 122.28 AND 122.41
FOR RCRA AND UIC RESPECTIVELY. FINALLY, EPA HAS AMENDED SECTION 122.4,
AS DISCUSSED IN THE PREAMBLE TO THAT SECTION, TO REQUIRE RETENTION OF
INFORMATION USED IN COMPLETEING PERMIT APPLICATIONS, AND THIS
REQUIREMENT IS REPEATED HERE.
(13) SIGNATORIES. PARAGRAPH (K) SIMPLY RESTATES THE REQUIREMENT OF
SECTION 122.6 THAT REPORTS TO THE DIRECTOR BE SIGNED AND CERTIFIED, TO
MAKE SURE THAT THE REQUIREMENTS OF THAT SECTION ARE PERMIT REQUIREMENT.
(14) REPORTING REQUIREMENTS. FINAL PARAGRAPH (L) WAS PROPOSED IN
SECTION 122.11 (C) AND (H). MANY COMMENTERS EXPRESSED CONCERN OVER
PROPOSED PARAGRAPH (C), WHICH REQUIRED THE PERMITTEE TO REPORT ANY PAST
OR PREDICTED ACTIVITY WHICH MIGHT CONSTITUTE CAUSE FOR MODIFICATION OR
REVOCATION AND REISSUANCE. THE GENERAL TENOR OF THESE COMMENTS WAS THAT
THE PROVISION WAS VAGUE AND BURDENSOME, WOULD LEAD TO TRIVIAL AND
DUPLICATIVE REPORTING, AND MIGHT VIOLATE THE FIFTH AMENDMENT. EXAMPLES
WERE GIVEN OF INSTANCES WHEN THIS REQUIREMENT WOULD APPLY EVEN IF THERE
WERE NEITHER PERMIT NONCOMPLIACNE NOR ALTERATION TO THE FACILITY, FOR
EXAMPLE UPON PROMULGATION OF NEW STANDARDS OR REGULATIONS. FURTHERMORE,
THE PROVISION WOULD HAVE REQUIRED THE PERMITTEE TO MAKE A DETERMINATION
OF "CAUSE" AND MIGHT, FOR EXAMPLE, AHVE REQUIRED REPORTING OF TRIVIAL
INSTANCES OF "INEFFECTIVE MANAGEMENT." FINALLY, IT WAS UNCLEAR HOW THIS
REPORTING REQUIREMENT OPERATED IN RELATION TO SEVERAL OTHER REPORTING
REQUIREMENTS WHICH ALSO APPEARED IN THE PORPOSED SECTION (REPORTING OF
NONCOMPLIANCE, IN EMERGENCIES, OF MONITORING) AND ELSEWHERE IN THE
REGULATIONS (MONITORING, PROPOSED TRANSFERS, NONCOMPLIANCE REPORTING).
THE SAME EVENT MIGHT HAVE HAD TO BE REPORTED TWO OR EVEN THREE TIMES
UNDER SEPARATE PROPOSED PROVISIONS.
SEVERAL COMMENTERS ARGUED THAT MANDATORY REPORTING OF NONCOMPLIANCE
RAISES QUESTIONS OF SELF-INCRIMINATION UNDER THE FIFTH AMENDMENT. THE
PRIVILEGE AGAINST COMPULSORY SELF-INCRIMINATION APPLIES ONLY IN A
CRIMINAL CASE. MOREOVER, CORPORATIONS DO NOT HAVE THE PRIVILEGE.
GEORGE CAMPBELL PAINTING CORPORATION V. REID, 392 U.S. 286 (1968).
FINALLY, "RECORDS REQUIRED TO BE KEPT" BY INDIVIDUALS ARE OUTSIDE THE
SCOPE OF THE PRIVILDGE. SHAPIRO V. UNITED STATES, 335 U.S. 1 (1948).
THE REPORTING REQUIREMENTS OF SECTION 122.7(L) FIT WITHIN THIS "REQUIRED
RECORDS" EXCEPTION TO THE SCOPE OF THE FIFTH AMENDMENT PRIVILEGE AND,
THEREFORE, THERE IS NO CONSTITUTIONAL INFIRMITY IN REQUIRING REPORTING
OF NONCOMPLIANCE AS A CONDITTION OF RECEIVING A PERMIT.
EPA HAS EXTENSIVLY REWRITTEN THE PERMITTEE'S REPORTING REQUIREMENTS
TO MAKE IT AS CLEAR AS POSSIBLE TO THE PERMITTEE WHAT REPORTS ARE
REQUIRED, WHEN THEY ARE TO BE SUBMITTED, AND HOW THEY RELATE TO EACH
OTHER AND TO OTHER SECTIONS OF THE REGULATIONS. ALL DUTIES OF THE
PERMITTEE TO SUBMIT REPORTS TO THE DIRECTOR AS PART OF THE PERMIT
PROGRAM WILL NOW BE EXPLAINED IN THE PERMIT, AND ARE SUMMARIZED IN ONE
PLACE, SECTION 122.7(L), AND CORRESPONDING SECTIONS OF THE PROGRAM
SUBPARTS. THESE REPORTING REQUIREMENTS ARE SUMMARIZED UNDER EIGHT
HEADINGS IN SECTION 122.7(L) AND ARE DISCUSSED HERE AS FOLLOWS: (A)
PLANNED CHANGES AND ANTICIPATED NONCOMPLIANCE; (B) TRANSFERS; (C)
MONITORING REPORTS; (D) COMPLIANCE SCHEDULES; (E) 24-HOUR REPORTING;
(F) OTHER NONCOMPLIANCE; AND (G) OTHER INFORMATION. SEE TABLE III.
THESE HEADINGS HAVE BEEN HARMONIZED TO PREVENT DUPLICATE REPORTING OF
THE SAME EVENT WHERE THIS WOULD SERVE NO PURPOSE. AS NOTED IN THE
TABLE, THE CORRESPONDING PROGRAM SECTIONS REFER TO ADDITIONAL PERMIT
REPORTING REQUIREMENTS THAT ARE NOT SPECIFICALLY RELATED TO MONITORING
OR COMPLIANCE. THESE REQUIREMENTS MUST ALSO BE INCORPORATED INTO
FIXED-TERM PERMITS TO BE ENFORCEABLE.
(A) PLANNED CHANGES AND ANTICIPATED NONCOMPLIANCE. PROPOSED
PARAGRAPHS (C) AND (H) COMBINED REPORTING OF BOTH PAST AND FUTURE CAUSES
FOR MODIFICATION OR NONCOMPLIANCE. COMMENTERS ARGUED THAT THESE
PARAGRAPHS WERE CONFUSING AND OVERBROAD. IN RESPONSE, EPA HAS SEPARATED
THE REPORTING REQUIREMENTS FOR EVENTS CONTEMPLATED IN THE FUTURE FROM
REPORTING REQUIREMENTS WHICH ARISE AFTER THE EVENT, AND HAS NARROWED THE
SCOPE OF BOTH.
PLANNED CHANGES. FIRST, PERMITTEES MUST REPORT "PLANNED PHYSICAL
ALTERATIONS OR ADDITIONS TO THE PERMITTED FACILITY" (SECTION
122.7(L)(1)).
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 018 OF 225
COSTLE DM ADMINISTRATOR
EPA
113517
REGULATIONS
EXCEPT AS PROVIDED IN SECTION 122.61(A) FOR NPDES (EXPECTED USE OR
MANUFACTURE OF TOXIC POLLUTANTS), THIS IS THE ONLY REPORTING DUTY WHICH
ARISES BEFORE THE EVENT AS A MATTER OF COURSE REGARDLESS OF WHETHER THE
PERMITTEE BELIEVES IT MIGHT GIVE RISE TO A PERMIT MODIFICATION. (NEW
RCRA AND UIC FACILITIES ARE ALSO REQUIRED TO SUBMIT A STATEMENT BEFORE
COMMENCING OPERATIONS; SEE SECTIONS 122.28(C) AND 122.41(D).) IN THE
PROPOSAL, THE PERMITTEE ONLY REPORTED CHANGES AFTER MAKING A
DETERMINATION OF CAUSE FOR MODIFICATION. H OWEVER, EPA BELIEVES THAT IT
IS UNREASONABLE TO EXPECT PERMITTEES TO DISTINGUISH THOSE ALTERATIONS TO
THE FACILITY WHICH MAY CONSTITUTE CAUSE FOR PERMIT MODIFICATION FROM
THOSE WHICH DO NOT; THEREFORE, THE DIRECTOR SHALL MAKE THIS
DISTINCTION. IN ADDITION, THE NATURE OF THE PROGRAMS COVERED BY THIS
PROVISION FAVORS THE PRESUMPTION THAT PHYSICAL CHANGES IN THE FACILITY
WILL GIVE RISE TO CAUSE FOR MODIFICATION OF THE PERMIT. FOR NPDES,
CHANGES TO THE FACILITY INCLUDE ANY PHYSICAL CHANGES, SUCH AS ADDITION
OF A NEW PROCESS LINE, THAT MAY AFFECT THE QUALITY OF THE DISCHARGE. IT
ALSO INCLUDES COMMENCING TO DISCHARGE INTO A WELL, INTO A POTW, OR BY
LAND APPLICATION, AND THE PERMIT MAY BE MODIFIED OR TERMINATED
ACCORDINGLY UNDER SECTION 122.16(A)(4), USING THE CRITERIA IN SECTION
122.65. WHEN PLANS ARE KNOWN SUFFICIENTLY IN ADVANCE, THIS NOTICE
SHOULD BE GIVEN IN TIME FOR THE DIRECTOR TO MODIFY THE PERMIT PRIOR TO
THE OCCURRENCE OF THE NOTED EVENT. THIS IS NECESSARY SO THAT, IF
MODIFICATION OF THE PERMIT IS AN APPROPRIATE RESPONSE TO THE CHANGE, THE
MODIFICATION CAN BE MADE IN TIME TO PREVENT NONCOMPLIANCE WITH THE
PERMIT.
ANTICIPATED NONCOMPLIANCE. THE "PLANNED ALTERATIONS OR ADDITIONS TO
THE FACILITY" THAT ARE TO BE REPORTED UNDER SECTION 122.7(L)(1) ARE
LIMITED TO PHYSICAL CHANGES TO THE FACILITY AND EXCLUDE CHANGES IN
PRODUCTION OR OTHER ACTIVITIES (EXCEPT AS PROVIDED IN SECTION 122.61(A)
FOR NPDES). IN THE CASE OF ALL OTHER CHANGES TO THE FACILITY OR
ACTIVITY CONTEMPLATED BY THE PERMITTEE, ADVANCE REPORTING IS REQUIRED
ONLY WHERE NONCOMPLIANCE IS ANTICIPATED (SECTION 122.7(L)(2)). HERE EPA
PRESUMES THAT CHANGES ARE NOT LIKELY TO CAUSE NONCOMPLIANCE EXCEPT IN
CASES WHERE THE POTENTIAL VIOLATION IS CLEAR ENOUGH TO ALLOW RELIANCE ON
SELF POLICING. CONSEQUENTLY, EPA BELIEVES THAT IN MOST CASES PERMITTEES
MAY BEGIN BEW ACTIVITIES OTHER THAN PHYSICAL ALTERATIONS TO THE FACILITY
WITHOUT THE FEAR OF VIOLATING THEIR PERMITS IF THEY HAVE NO REASON TO
BELIEVE THAT THEY WILL RESULT IN NONCOMPLIANCE. HOWEVER, NONCOMPLIANCE
WITH A PERMIT IS ALWAYS GROUNDS FOR ENFORCEMENT, AND IF THERE IS ANY
DOUBT IN THE PERMITTEE'S MIND WHETHER A CONTEMPLATED CHANGE TO THE
REGULATED ACTIVITY MAY CONSTITUTE NONCOMPLIANCE, THE PERMITTEE SHOULD
CONTACT THE PERMITTING AUTHORITY FOR FURTHER INFORMATION.
DISTINGUISHING "PLANNED CHANGES" FROM "ANTICIPATED NONCOMPLIANCE"
REFLECTS A COMPROMISE BETWEEN TWO CONFLICTING BUT VALID CONSIDERATIONS:
THE NEED TO GIVE THE PERMITTEE THE MAXIMUM ACHIEVABLE CEETAINTY AS TO
WHAT IT IS NECESSARY TO REPORT, AND THE NEED TO PROVIDE THE DIRECTOR
WITH INFORMATION IN A TIMELY MANNER. THE FINAL APPROACH IS
SIGNIFICANTLY NARROWER TAN IN THE PROPOSAL. THE PROPOSAL REQUIRED THAT
NOTICE BE GIVEN IN ADVANCE OF ANYTHING WHICH MIGHT CONSTITUTE CAUSE FOR
MODIFICATION OR REVOCATION AND REISSUANCE AS WELL AS NOTICE OF ANY
ANTICIPATED NONCOMPLIANCE. THE FINAL NOTICE REQUIREMENTS (1) ELIMINATE
NOTIFICATION AT ANY TIME BASED ON POSSIBLE CAUSE FOR MODIFICATION; (2)
ONLY REQUIRE NOTICE OF ANTICIPATED NONCOMPLIANCE WITHOUT THE ELABORATE
LIST OF NONCOMPLIANCE INFORMATION THAT WAS REQUIRED IN THE PROPOSAL;
(3) TRTGGERS ADVANCE NOTICE ONLY UPON CHANGES TO THE FACILITY OR
ACTIVITY; AND (4) ONLY REQUIRES ADVANCE REPORTING OF CHANGES IN
PRODUCTION WITHOUT ACCOMPANYING PROCESS CHANGES IF THE PERMITTEE HAS
REASON TO BELIEVE THEY MIGHT RESULT IN PERMIT NONCOMPLIANCE. FOR
EXAMPLE, IF AN NPDES PERMITTEE IS REDUCING ITS PRODUCTION AND
CONSEQUENTLY ITS DISCHARGES, AND THEREFORE DOES NOT VIOLATE THE EFFLUENT
LIMITATIONS IN THE PERMIT, SUCH CHANGES NORMALLY NEED NOT BE REPORTED.
THIS PREVENTS THE PERMITTEE FROM FEELING IT MUST REPORT INNUMERABLE
INSQANCES OF CHANGED PRODUCTION JUST TO BE ON THE SAFE SIDE. (SEE,
HOWEVER, SECTION 122.16(A)(4), WHICH ALLOWS AN NPDES PERMIT TO BE
MODIFIED IN THIS SITUATION EVLN IF TERL IS NO PERIT NONCOMPLIANCE. THIS
CAUSE FOR MODIFICATION IS STATUTORY.) FIFTH, CHANGES IN THE ACTIVITY
WHICH ARE NOT LIMITED IN THE PERMIT WOULD NOT HAVE TO BE REPORTED UNDER
THIS SCHEME. EPA BELIEVES THAT FOR NPDES THE REQUIREMENT TO REPORT
EXPECTED USE OR MANUFACTURE OF TOXIC POLLUTANTS UNDER SECTION 122.61(A)
TAKES CARE OF PARAMETERS NOT LIMITED IN THE PERMIT IN MOST INSTANCES;
SIMILARLY SECTION 123.95 ENSURES THAT ANY CHANGE IN AN ACTIVITY
REGULATED BY A 404 PERMIT IS NONCOMPLIANCE. AS FOR RCRA AND UIC,
EXPERIENCE WITH THESL PROGRAMS MAY BE NECESSARY BEFORE IT CAN BE
DETERMINED WITH MORE PRECISION WHAT ACTIVITIES -- OTHER THAN CHANGES TO
THE PHYSICAL FACILITY OR THOSE WHICH MAY RESULT IN NONCOMPLIANCE -- NEED
TO BE REPORTED IN ADVANCE.
(B) TRANSFERS. THE PROVISION ON TRANSFERS APPEARED IN THE PROPOSAL
IN SECTION 122.8(E). THESE FINAL REGULATIONS CONTAIN A SEPARATE SECTION
ON TRANSFERS, SECTION 122.14. THIS STANDARD PERMIT CONDITION REFLECTS
THE REQUIREMENTS OF THAT SECTION; SEE THE PREAMBLE DISCUSSION
THEREUNDER.
(C) MONITORING REPORTS. THE NEW SECTION OF THE PERMIT LISTING
REPORTING REQUIREMENTS NOW REFERS TO THE DUTY TO SUBMIT MONITORING
REPORTS SO AS TO PROVIDE ONE LIST OF PERMIT REPORTING REQUIREMENTS. THE
FREQUENCY AND CONTENT OF THESE REPORTS, HOWEVER, WILL BE SPECIFIED
ELSEWHERE IN THE PERMIT BECAUSE THEY ARE VARIABLE PROVISIONS
INCORPORATED THROUGH SECTION 122.11 AND THE SECTIONS WHICH IT REFERS TO.
(D) COMPLIANCE SCHEDULES. THE REQUIREMENT FOR THE SUBMISSION OF
REPORTS ON COMPLIANCE OR NONCOMPLIANCE WITH REQUIREMENTS IN A COMPLIANCE
SCHEDULE APPEARED IN PROPOSED SECTION 122.12(A)(2) (NOW SECTION
122.10(A)(2)). BECAUSE THIS REQUIREMENT IS BINDING ON ALL PERMITTEES
WITH COMPLIANCE SCHEDULES, IT IS REFERRED TO ALSO IN FINAL SECTION
122.7(1)(4) TO MAKE SURE THAT IT WILL APPEAR IN THE PERMIT.
(E) TWENTY-FOUR HOUR REPORTING. PROPOSED SECTION 122.11(H) STATED
THAT ALL INSTANCES OF NONCOMPLIANCE HAD TO BE REPORTED, THAT THE
DIRECTOR "MAY" REQUIRE SUCH REPORT WITHIN 24 HOURS "OR" FIVE DAYS IN
CERTAIN INSTANCES, AND THAT THE DIRECTOR "SHALL' REQUIRE SUCH REPORTS
WITHIN 24 HOURS IN THE CASE OF NPDES PERMITTEES SUBJECT TO CWA SECTION
307(A) TOXIC STANDARDS OR PROHIBITIONS. MANY COMMENTERS OBJECTED THAT
THE DUTY TO REPORT THESE INSTANCES OF NONCOMPLIANCE WAS VAGUE,
UNREASONABLE, AND DUPLICATIVE. IN ADDITION, APPLICATION OF THE FIVE-DAY
OR 24-HOUR REQUIREMENT WAS UNCLEAR.
EPA BELIEVES THAT IN CERTAIN INSTANCES IT IS IMPORTANT TO RECEIVE
PROMPT NOTICE OF NONCOMPLIANCE, AND THE REQUIREMENT FOR 24-HOUR OR
FIVE-DAY REPORTING HAS BEEN RETAINED. HOWEVER, SEVERAL CHANGES HAVE
BEEN MADE TO MAKE THIS REQUIREMENT CLEARER.
EPA HAS RETAINED THE GENERAL DUTY TO REPORT POTENTIAL ENDANGERMENTS
TO HEALTH AND THE ENVIRONMENT AS A 24-HOUR REPORTING REQUIREMENT
APPLICABLE TO ALL PROGRAMS. HOWEVER, THE GENERAL REQUIREMENT IS NOW
TRIGGERED ONLY BY NONCOMPLIANCE. EPA AGREES THAT A DUTY TO
INDEPENDENTLY REPORT INFORMATION THAT "MAY" CONSTITUTE AN ENDANGERMENT
TO HUMAN HEALTH OR THE ENVIRONMENT THAT IS NOT COUPLED WITH
NONCOMPLIANCE SHOULD NOT BE IMPOSED.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 019 OF 225
COSTLE DM ADMINISTRATOR
EPA
113518
REGULATIONS
SECOND, EACH OF THE PROGRAM SUBPARTS INDICATES MORE SPECIFIC
INSTANCES WHERE HEALTH AND THE ENVIRONMENT REPORTING IS LIKELY TO BE
APPLICABLE. WHILE IN MANY CASES THE PROMPT REPORTING OF INSTANCES OF
NONCOMPLIANCE AFFECTING HUMAN HEALTH AND THE ENVIRONMENT MUST DEPEND ON
THE PERMITTEE'S GOOD FAITH ESTIMATION OF ITS IMPORTANCE, IT SHOULD BE
CLEAR, AS THESE REGULATIONS NOW PROVIDE, THAT IN THE CASE OF A RELEASE
OF A HAZARDOUS WASTE INTO PUBLIC DRINKING WATER SUPPLIES (RCRA),
ENDANGERMENT OF PUBLIC DRINKING WATER SUPPLIES (UIC), AND NONCOMPLIANCE
INVOLVING A CWA SECTION 311 OR 307 POLLUTANT (NPDES), THE PERMITTEE MUST
REPORT IMMEDIATELY TO THE DIRECTOR.
THIRD, THE PROGRAM SUBPARTS ALSO INDICATE ADDITIONAL 24-HOUR
REPORTING REQUIREMENTS WHICH ARE NOT NECESSARILY LINKED TO POSSIBLE
ENDANGERMENT TO HUMAN HEALTH AND THE ENVIRONMENT OR TO NONCOMPLIANCE,
BUT WHICH ARE READILY IDENTIFIABLE BY THE PERMITTEE AND WHICH EPA HAS
DETERMINED ARE SUFFICIENTLY IMPORTANT TO WARRANT IMMEDIATE REPORTING.
THUS, FOR NPDES, EACH PERMIT WILL INCLUDE A LIST OF THOSE POLLUTANTS FOR
WHICH THE VIOLATION OF A MAXIMUM DAILY DISCHARGE LIMITATION MUST BE
REPORTED WITHIN 24 HOURS. SIMILARLY, FOR RCRA, EPA REQUIRES
NOTIFICATION OF ANY FIRE OR EXPLOSION AT AN HWM FACILITY, AS REQUIRED IN
EACH RCRA PERMITTEE'S CONTINGENCY PLAN, EVEN THOUGH THERE MAY BE NO
SPECIFIC PERMIT CONDITION DIRECTLY PROHIBITING FIRES OR EXPLOSIONS SO AS
TO RENDER THE EVENT TECHNICALLY A "NONCOMPLIANCE."
EACH EVENT REPORTED UNDER SECTION 122.7(L)(6) AND THE CORRESPONDING
PROGRAM SECTIONS MUST BE FOLLOWED BY A WRITTEN SUBMISSION WITHIN 5 DAYS.
THE LIST OF INFORMATION THAT MUST BE SUBMITTED IN THE WRITTEN REPORT
SPEAKS IN TERMS OF "NONCOMPLIANCE," BUT WHERE A REPORT MUST BE SUBMITTED
FOR AN EVENT WHICH IS TECHNICALLY NOT NONCOMPLIANCE, THIS MAY BE READ TO
INCLUDE THE OTHER EVENTS REQUIRED TO BE REPORTED.
FOURTH, SEVERAL INCONSISTENCIES HAVE BEEN ELIMINATED. THE
REQUIREMENT FOR ORAL REPORTING WITHIN 24 HOURS IS NOW UNIFORM IN ALL
INSTANCES COVERED BY NEW SECTION 122.7(L)(6). THE PROVISION FOR RCRA
HAS BEEN COORDINATED WITH THE LANGUAGE IN THE SECTION 3004 REGULATIONS;
SEE SECTION 122.28(D) AND 40 CFR SECTION 264.56.
FIFTH, THE OPERATION OF THE 24-HOUR VERSUS 5-DAY REQUIREMENT HAS BEEN
CLARIFIED. NOW, IN ALL INSTANCES, AN ORAL REPORT MUST BE SUPPLIED IN 24
HOURS, TO BE FOLLOWED BY A WRITTEN REPORT WITHIN 5 DAYS. THERE IS NO
LONGER A "CHOICE" BETWEEN 24 HOURS OR 5 DAYS THAT THE PERMITTEE WOULD
HAVE TO BE INFORMED OF SOMEHOW, AND THERE IS NO POSSIBILITY THAT A
WRITTEN REPORT COULD BE REQUIRED WITHIN 24 HOURS. IN ADDITION, SOME
COMMENTERS, INCLUDING EPA REGIONAL OFFICES, ARGUED AGAINST THE
DIRECTOR'S PROPOSED AUTHORITY TO WAIVE A WRITTEN REPORT WHEN THE
PERMITTEE HAS ORALLY REPORTED WITHIN 24 HOURS. EPA AGREES THAT A
WRITTEN REPORT IS NEEDED FOR DOCUMENTATION OF ALL INSTANCES OF THREATS
TO HUMAN HEALTH AND THE ENVIRONMENT. HOWEVER, WRITTEN REPORTS
CONCERNING OTHER 24-HOUR REPORTING INSTANCES REMAIN WAIVABLE IF
INDICATED IN THE PROGRAM SUBPARTS.
(G) OTHER NONCOMPLIANCE. PROPOSED SECTION 122.11(H) REQUIRED ALL
INSTANCES OF NONCOMPLIANCE TO BE REPORTED TO THE DIRECTOR, BUT WAS
UNCLEAR AS TO HOW THIS REQUIREMENT RELATED TO OTHER REPORTING
REQUIREMENTS. FINAL SECTION 122.(L)(7) STATES THAT ONLY THOSE INSTANCES
OF NONCOMPLIANCE NOT OTHERWISE REPORTED IN MONITORING REPORTS,
COMPLIANCE SCHEDULES, OR AS 24-HOUR AND 5-DAY REPORTS, MUST BE
INDEPENDENTLY REPORTED AS NONCOMPLIANCE. REPORTS OF ANTICIPATED
NONCOMPLIANCE MUST STILL BE REPORTED UNDER THIS HEADING IF THE
NONCOMPLIANCE ACTUALLY OCCURS. THUS, IF NONCOMPLIANCE IS REVEALED IN
ROUTINE SUBMISSIONS OF MONITORING REPORTS, IT IS NOT NECESSARY FOR THE
PERMITTEE TO AUTOMATICALLY SUBMIT A DUPLICATE REPORT ON THE SAME
INFORMATION. FOR NPDES, AND PERHAPS THE OTHER PROGRAMS, REPORTS UNDER
THIS HEADING WILL BE RARE.
THE FINAL PROVISION ALSO CLARIFIES WHEN THESE NONCOMPLIANCE REPORTS
ARE TO BE SUMITTED -- AT THE SAME TIME AS THE MONITORING REPORTS ARE
SUBMITTED UNDER THE CONDITIONS OF THE PERMIT. THE PROPOSAL REFERRED TO
THE SECTION ON QUARTERLY AND ANNUAL NONCOMPLIANCE REPORTS. THIS WAS
CONFUSING BECAUSE THESE REPORTS ARE PREPARED BY THE DIRECTOR, NOT THE
PERMITTEE. THE CROSS-REFERENCE HAS BEEN ELIMINATED.
(H) OTHER INFORMATION. THIS HEADING, WHICH WAS ONLY IMPLIED IN THE
PROPOSAL THROUGH THD DUTY TO REPORT CAUSES FOR MODIFICATION, REQUIRES
PERMITTEES TO UPDATE INFORMATION SUBMITTED IN THEIR APPLICATIONS OR
REPORTS. IF THE PERMITTEE LEARNS THAT INCORRECT INFORMATION IS
CONTAINED IN ITS APPLICATION OR REPORTS THAT HAVE BEEN SUBMITTED, IT
SHALL CORRECT THE INFORMATION "PROMPTLY."
THE PERMITTEE'S REPORTING REQUIREMENTS ARE SUMMARIZED IN TABLE V.
FINAL SECTION 122.8 (PROPOSED SECTION 122.13) IS ESSENTIALLY A
CROSS-REFERENCE TO OTHER SECTIONS OF THESE REGULATIONS AND OTHER
REGULATIONS WHICH SET FORTH REQUIRED PERMIT CONDITIONS THAT VARY FROM
PERMIT TO PERMIT AND METHODS FOR SETTING THOSE CONDITIONS. THIS SECTION
HAS BEEN REWRITTEN TO PROVIDE A ROADMAP TO ALL OF THE SECTIONS OF THESE
REGULATIONS THAT MUST BE CONSULTED BY PERMIT WRITERS IN SETTING THESE
VARIABLE PERMIT CONDITIONS (SEE ALSO TABLE II AND PREAMBLE TO SECTION
122.13). THE SECTION FIRST REFERS TO SECTIONS OF SUBPART A WHICH SET
FORTH PERMIT CONDITIONS REQUIRED FOR ALL PROGRAMS IN CERTAIN INSTANCES,
AND THEN REFERS TO CORRESPONDING SECTIONS IN EACH OF THE PROGRAM
SUBPARTS ON "ESTABLISHING PERMIT CONDITIONS" FOR THOSE PROGRAMS. THE
LATTER SECTIONS IN TURN REFER TO ALL SUBSEQUENT SECTIONS OF THE SUBPART
CONTAINING INFORMATION ON SETTING PERMIT CONDITIONS, AND TO RELEVANT
PORTIONS OF THE TECHNICAL REGULATIONS FOR THE PROGRAM.
TABLE V. -- PERMITTEE REPORTING REQUIREMENTS
TABLE OMITTED
THE FACT THAT THIS SECTION IS THE GUIDE TO ALL PERMIT CONDITIONS
WHICH DO NOT ALWAYS APPLY IN THE SAME WAY, OR IN EVERY INSTANCE, TO
EVERY PERMIT, AND THAT THESE CONDITIONS THEREFORE MUST BE APPLIED ON A
CASE-BY-CASE BASIS, AS APPROPRIATE, SHOULD NOT BE TAKEN TO MEAN THAT ANY
OF THEM ARE NECESSARILY OPTIONAL. IN MANY IF NOT MOST CASES, THE
CONDITIONS REFERRED TO IN THIS SECTION ARE MANDATORY IF THE
CIRCUMSTANCES WHICH INVOKE THE CONDITION ARE PRESENT. IN ADDITION, THIS
SECTION NOW EXPLICITLY STATES THE GENERAL DUTY OF THE PERMIT WRITER TO
INCLUDE CONDITIONS IN THE PERMIT WHICH ARE NECESSARY TO ENSURE
COMPLIANCE WITH THE APPROPRIATE ACT AND REGULATIONS. IT ALSO CONTAINS
GUIDANCE ON WHEN A STATUTORY OR REGULATORY REQUIREMENT BECOMES EFFECTIVE
FOR PURPOSES OF THAT DUTY. SOME OF THAT MATERIAL ORIGINALLY APPEARED IN
SECTION 122.69 OF THE PROPOSAL FOR NPDES; IT IS NOW APPLICABLE TO ALL
OF THE PROGRAMS.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 020 OF 225
COSTLE DM ADMINISTRATOR
EPA
113519
REGULATIONS
13SECTION 122.9 DURATION OF PERMITS.
PROPOSED SECTION 122.8 (NOW SECTION 122.9) PROVIDED THAT RCRA AND UIC
PERMITS WOULD BE ISSUED FOR TERMS UP TO THE LIFE OF THE FACILITY. NPDES
AND 404 PERMITS WOULD BE ISSUED FOR TERMS OF UP TO 5 YEARS. WHEN A
FACILITY OR ACTIVITY HAS PERMITS UNDER TWO OR MORE PROGRAMS, PROPOSED
SECTION 122.9 (NOW SECTION 122.14) PROVIDED THAT A "CROSS-REVIEW" OF
EACH ISSUED PERMIT WOULD HAVE BEEN CONDUCTED EVERY TIME ANOTHER PERMIT
FOR THAT FACILITY OR ACTIVITY WAS ISSUED, MODIFIED, REISSUED, OR
TERMINATED. THIS REVIEW WOULD HAVE BEEN CONDUCTED TO DETERMINE WHETHER
THE OTHER PERMITS SHOULD ALSO BE MODIFIED, REVOKED AND REISSUED, OR
TERMINATED. PROPOSED SECTION 122.9 ON CAUSES FOR MODIFICATION (NOW
SECTION 122.15) PROVIDED THAT MODIFICATION OR REVOCATION AND REISSUANCE
OF A PERMIT COULD BE BASED UPON A RELATED CHANGE TO ANOTHER PERMIT
ISSUED TO THE SAME FACILITY OR ACTIVITY. ALSO, ALL UIC AND RCRA PERMITS
WERE SUBJECT TO MANDATORY REVIEW EVERY 5 YEARS.
THE PROPOSAL REQUESTED COMMENTS ON THE PERMIT DURATION AND REVIEW
SCHEME, AND A SIGNFICANT NUMBER WERE RECEIVED. IN GENERAL, INDUSTRY
FAVORED LIFETIME PERMITS FOR RCRA AND UIC, AND OBJECTED THAT THE
PROVISIONS FOR PERMIT REVIEW NEGATED THE ADVANTAGES OF LIFETIME PERMITS.
MANY FELT THAT NORMAL REPORTING, INSPECTION, AND MONITORING ALREADY
PROVIDED SUFFICIENT OVERSIGHT, AND THAT REVIEWS OUGHT TO BE TRIGGERED
ONLY WHEN SUCH METHODS THEMSELVES REVEALED POSSIBLE CAUSE FOR A
MODIFICATION. MORE FUNDAMENTALLY, COMMENTERS CITED THE PERMITTEE'S NEED
TO RELY ON THE CONDITIONS OF ITS PERMIT, PARTICULARLY FOR SITING AND
CONSTRUCTION REQUIREMENTS, AND ARGUED THAT FINANCING COULD BE
JEOPARDIZED WITHOUT THIS CERTAINTY. THE PROPOSAL SEEMED TO OPEN THE
PROSPECT OF AN ENDLESS ROUND OF REVIEWS OR "NONSTOP PERMITTING" WITH
PERMIT CONDITIONS CONTINUALLY BEING ADJUSTED. THIS FEAR WAS AGGRAVATED
BY THE FACT THAT JUST WHAT A "REVIEW" ENTAILED WAS NOT SPELLED OUT.
FINALLY, MANY COMMENTERS FEARED THAT REVIEWS WOULD CAUSE DELAYS IN
PROCESSING APPLICATIONS AND MODIFICATION REQUESTS, BECAUSE ACTION WOULD
BE HELD UP WHILE ALL REVIEWS OF OTHER PERMITS FOR THE SAME FACILITY WERE
CONDUCTED. THEY ESPECIALLY OBJECTED TO THE PROVISION FOR
"CROSS-REVIEWS" FOR FACILITIES WITH MULTIPLE PERMITS BOTH FOR ITS
POTENTIAL FOR DELAY AND FOR APPEARING TO "BOOTSTRAP" THE REQUIREMENTS OF
ONE PERMIT ONTO OTHER, RELATED PERMITS.
ON THE OTHER HAND, A NUMBER OF COMMENTS WERE RECEIVED FROM
ENVIRONMENTAL GROUPS AND SOME STATES FAVORING A FIXED TERM APPROACH,
PARTICULARLY FOR RCRA PERMITS. THESE COMMENTERS FELT THAT REGULAR
REVIEW AND UPDATING OF PERMITS IS NECESSARY FOR AN EFFECTIVE UIC OR RCRA
PROGRAM, AND THAT THE ONLY WAY TO BE SURE THAT SUCH REVIEWS TAKE PLACE
IS TO ADOPT A FIXED-TERM PERMIT APPROACH.
IN RESPONSE, AND AS A RESULT OF THE EVOLUTION OF ITS OWN THINKING,
EPA HAS EXTENSIVELY REDRAFTED THE PERMIT DURATION, PERMIT REVIEW
(PROPOSED SECTION 122.9, NOW DELETED BUT DISCUSSED BELOW), PERMIT
TERMINATION (PROPOSED SECTION 122.10, NOW SECTION 122.16), EFFECT OF A
PERMIT (PROPOSED SECTION 122.7, NOW SECTION 122.13), AND CONSOLIDATION
OF APPLICATIONS (PROPOSED SECTION 124.4, NOW SECTION 124.4) SECTIONS TO
PROVIDE MAXIMUM CERTAINTY TO PERMITTEES CONSISTENT WITH ADEQUATE
PROTECTION OF THE ENVIRONMENT AND HUMAN HEALTH. THE DISCUSSION OF
PERMIT DURATIONS SHOULD BE READ ALONG WITH THE ABOVE SECTIONS AND
ACCOMPANYING PREAMBLE.
WITH THE EXCEPTION OF CERTAIN UIC WELLS, WHICH MAY RECEIVE LIFETIME
PERMITS, THE FINAL REGULATIONS REPLACE THE MANDATORY 5 YEAR REVIEWS FOR
RCRA AND UIC PERMITS, AND IN ALL CASES REPLACE THE "CROSS-REVIEWS" FOR
FACILITIES WITH MORE THAN ONE PERMIT, WITH A FIXED-TERM PERMIT SCHEME
FOR ALL OF THE PROGRAMS. ACCORDINGLY, PERMIT REISSUANCE AT REGULAR FIVE
OR TEN YEAR INTERVALS, INSTEAD OF PERMIT MODIFICATION AT UNPREDICTABLE
TIMES, WILL BE THE PRIMARY MECHANISM FOR ADJUSTING PERMIT REQUIREMENTS.
IN ADDITION, EPA HAS NARROWED THE GROUNDS UPON WHICH A PERMIT MAY BE
MODIFIED OR TERMINATED DURING EACH PERMIT TERM IN ORDER TO PROVIDE A
MAXIMUM AMOUNT OF SECURITY TO PERMITTEES. ALSO, A PROVISION HAS BEEN
ADDED STATING THAT FOR ALL PERMITS THAT MUST BE ISSUED FOR A FIXED TERM,
COMPLIANCE WITH A PERMIT CONSTITUTES COMPLIANCE, FOR PURPOSES OF
ENFORCEMENT, WITH THE APPROPRIATE ACT. FINALLY, BECAUSE OF THE
FIXED-TERM APPROACH, PERMITS FOR THE SAME FACILITY CAN BE SET TO EXPIRE
AND BE REISSUED AT THE SAME TIME. IN THIS WAY ALL RELEVANT ASPECTS OF A
FACILITY'S OPERATIONS CAN BE REVIEWED TOGETHER, WHICH SHOULD RESULT IN
MORE COMPREHENSIVE AND CONSISTENT REQUIREMENTS.
(1) FINAL SECTION 122.9 NOW STATES THAT ALL HWM FACILITIES MAY BE
ISSUED PERMITS WHICH ARE EFFECTIVE FOR A MAXIMUM OF 10 YEARS. WELLS
INJECTING INDUSTRIAL OR MUNICIPAL WASTES BENEATH THE LOWERMOST FORMATION
CONTAINING AN UNDERGROUNS SOURCE OF DRINKING WATER AND CERTAIN WELLS
INJECTING HAZARDOUS WASTES (CLASS I WELLS) MAY BE ISSUED PERMITS FOR UP
TO 10 YEARS. WELLS FOR ENHANCED RECOVERY, HYDROCARBON STORAGE, AND
SPECIAL PROCESS MINING (CLASS II AND III WELLS) WILL STILL RECEIVE
PERMITS FOR UP TO THE LIFE OF THE FACILITY. A CLASS V WELL, IF IT IS
REQUIRED TO OBTAIN A PERMIT (SEE PREAMBLE TO SECTION 122.37)) MAY
RECEIVE A PERMIT FOR UP TO 10 YEARS.
EPA AGREES WITH THOSE COMMENTERS WHO BELIEVE THAT PERMIT EXPIRATION
AND REISSUANCE IS AN IMPORTANT MECHANISM FOR PROVIDING REGULAR SCRUTINY
OF PERMIT COMPLIANCE AND UPDATING OF PERMIT CONDITIONS. WHEN PERMITS
MUST BE REISSUED PERIODICALLY, THERE IS GREATER ASSURANCE THAT THE
EXISTING CONDITIONS OF THE PERMIT WILL BE SCRUTINIZED TO DETERMINE
WHETHER ANY OF THEM MUST BE MODIFIED OR UPDATED. IN ADDITION, A
LIMITED-TERM PERMIT PROVIDES PROTECTION AGAINST HUMAN ERROR BY THE
PERMIT WRITER. TH IS IS PARTICULARLY IMPORTANT FOR FACILITIES WHICH
UNDERGO CONSTRUCTION TO COMPLY WITH CONSTRUCTION OR PERFORMANCE
STANDARDS CONTAINED IN THE PERMIT; SUCH FACILITIES COULD COMPLY WITH
THOSE STANDARDS AND YET NOT COMPLY WITH OTHER REQUIREMENTS DESIGNED TO
PROTECT HUMAN HEALTH AND THE ENVIRONMENT. UNDER THE PROPOSED SCHEME,
THE FACILITY COULD BE SUBJECT TO HAVING ITS PERMIT MODIFIED AT ANY TIME.
U NDER A FIXED-TERM PERMIT SCHEME, THIS SITUATION CAN NORMALLY BE
ADDRESSED DURING PERMIT REISSUANCE (SEE DISCUSSION OF PERMIT
MODIFICATION BELOW).
FINALLY, PERIODIC REISSUANCE BUILDS IN A MECHANISM FOR UPGRADING OF
PERMIT REQUIREMENTS TO REFLECT CHANGING KNOWLEDGE AND ADVANCES IN
TECHNOLOGY FOR PERMIT PROGRAMS WHICH ARE NEW OR UNDERGOING RAPID
EVOLUTION.
ACCORDINGLY, EPA HAS DETERMINED THAT RCRA FACILITIES AND CLASS I
WELLS UNDER THE UIC PROGRAM WILL BE ISSUED PERMITS OF A FIXED DURATION
OF UP TO 10 YEARS. THESE FACILITIES DEAL WITH HAZARDOUS AND MUNICIPAL
WASTES WHICH IN MANY INSTANCES HAVE GREAT POTENTIAL FOR HARM TO HUMAN
HEALTH AND THE ENVIRONMENT. IN BOTH INSTANCES THE FEDERAL REGULATORY
PROGRAM COVERING THESE FACILITIES IS NEW, WHICH FAVORS A SHORT-TERM
PERMIT APPROACH, ESPECIALLY DURING THE EARLY YEARS WHILE TECHNICAL
CRITERIA FOR THE REGULATION OF HAZARDOUS AND MUNICIPAL WASTE ARE FURTHER
DEVELOPED.
A 10-YEAR TERM (RATHER THAN 5 YEARS AS WITH NPDES) WAS CHOSEN FOR
RCRA FACILITIES BECAUSE OF THE ESPECIALLY INTENSE SCRUTINY SUCH
FACILITIES FREQUENTLY RECEIVE DURING PUBLIC HEARINGS (WHICH AR- REQUIRED
DURING PERMIT REISSUANCE) AND THE LOCAL OPPOSITON WHICH IS FREQUENTLY
ENGENDERED. EPA DETERMINED THAT FOR THIS REASON THE ENTREPRENEURIAL
RISK AND NEED FOR THE SECURITY WHICH IS AFFORDED BY A LONGER PERMIT TERM
IS CORRESPONDINGLY GREATER FOR RCRA FACILITIES AS A CLASS THAN FOR NPDES
POINT SOURCES AS A CLASS, PARTICULARLY IN VIEW OF WIDESPREAD SHORTAGES
OF CAPACITY WITHIN APPROVABLE FACILITIES AND THE CONSEQUENT LACK OF
LOCAL ALTERNATIVES. IN ADDITION, A TERM OF UP TO 10 YEARS MAY BE NEEDED
FOR SOME RCRA FACILITIES BECAUSE OF THEIR EXPERIMENTAL NATURE AND THE
NEED FOR ADEQUATE TIME TO ANALYZE DIFFERING APPROACHES TO HAZARDOUS
WASTE MANAGEMENT.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 021 OF 225
COSTLE DM ADMINISTRATOR
EPA
113520
REGULATIONS
FINALLY, 10 YEARS WAS CHOSEN BECAUSE IT IS A MULTIPLE OF FIVE, WHICH
WILL MAKE IT EASIER TO COORDINATE THE REISSUANCE OF RCRA PERMITS WITH
NPDES AND UIC PERMITS FOR THE SAME FACILITY. HAVING CHOSEN MAXIMUM
10-YEAR TERMS FOR RCRA FACILITIES, EPA DETERMINED THAT THE MAXIMUM TERM
FOR CLASS I WELLS SHOULD LIKEWISE BE 10 YEARS. TO PROVIDE OTHERWISE
WOULD NOT COMPORT WITH EPA'S ATTEMPTS THROUGH CONSOLIDATION TO ACHIEVE
CONSISTENCY BETWEEN PROGRAMS, PARTICULARLY AS CLASS I WELLS INCLUDE
THOSE INJECTING HAZARDOUS WASTES.
CLASS II AND III WELLS UNDER THE UIC PROGRAM, ON THE OTHER HAND, WILL
RETAIN THE MAXIMUM LIFETIME PERMIT DURATION WHICH APPEARED IN THE
PROPOSAL. THESE WELLS, WHICH ARE USED FOR ENHANCED OIL AND GAS
RECOVERY, CERTAIN TYPES OF HYDROCARBON STORAGE, AND SEVERAL KINDS OF
SPECIAL PROCESSES FOR MINING OF MINERALS OR IN SITU GASIFICATION OF
HYDROCARBON RESOURCES, PRESENT LESS HAZARD TO THE ENVIRONMENT, SO THAT
THE INCREASE IN PERMIT ISSUING RESOURCES NEEDED FOR FIXED-TERM PERMITS
WOULD NOT BE JUSTIFIED. INSTEAD, PERMITS FOR THESE FACILITIES WILL BE
REVIEWED EVERY 5 YEARS, AS IN THE PROPOSAL.
(2) SEVERAL COMMENTERS STATED THAT UIC PERMITS SHOULD BE FOR THE
ACTUAL LIFE OF THE FACILITY RATHER THAN THE "DESIGNED" LIFE, ON THE
GROUNDS THAT FOR MANY FACILITIES THE "DESIGNED" LIFE IS HARD TO
DETERMINE OR ARBITRARY, AND THAT A PERMIT RENEWAL APPLICATION WOULD BE
REQUIRED IF THE FACILITY HAPPENED TO LAST LONGER THAN ORIGINALLY
COMPUTED. THE PURPOSE OF THIS PROVISION WAS TO BE SURE THAT EPA AND
STATES WOULD HAVE ADEQUATE OVERSIGHT OF THE TERMINATION OF FACILITY
OPERATIONS, PARTICULARLY THE CLOSURE AND FINANCIAL RESPONSIBILITY
PROVISIONS SET FORTH IN SECTION 122.42. HOWEVER, EPA AGREES THAT
SETTING THE PERMIT TERM ON THE BASIS OF AN ESTIMATE OF THE OPERATING
LIFE OF THE FACILITY IS NOT THE WAY TO DO IT, PARTICULARLY AS THE
ESTIMATE COULD FALL ON EITHER SIDE OF THE ACTUAL DATE OF CLOSURE.
RATHER, EPA HAS AMENDED SECTION 122.41 TO REQUIRE UIC PERMITTEES TO GIVE
NOTICE 180 DAYS PRIOR TO CLOSURE SO THAT THE FINANCIAL RESPONSIBILITY
AND CLOSURE PROVISIONS OF THE PERMIT CAN BE REVIEWED AND MODIFIED IF
NECESSARY, AND THE PERMITTING AGENCY CAN BE ASSURED OF ADEQUATE
OPPORTUNITY TO OVERSEE THE TERMINATION OF OPERATIONS. THIS CHANGE HAS
CONSEQUENTLY ALLOWED EPA TO AMEND SECTION 122.9 SO THAT CLASS II AND III
WELLS MAY BE PERMITTED FOR UP TO THE ACTUAL OPERATING LIFE OF THE
FACILITY.
(3) SEVERAL COMMENTERS NOTED THAT BOTH THE LIFETIME AND FIXED-TERM
PERMIT PROVISIONS GAVE THE DIRECTOR DISCRETION TO ISSUE PERMITS FOR LESS
THAN THE FULL ALLOWABLE TERM. EPA BELIEVES THAT THE OPTION OF ISSUING
PERMITS FOR LESS THAN THE MAXIMUM DURATION IS NECESSARY IN BOTH
INSTANCES. FOR EXAMPLE, CLASS II AND III UIC WELLS INCLUDE A WIDE
VARIETY OF OPERATIONS IN VARIOUS LOCATIONS WITH DIFFERING ENVIRONMENTAL
CONCERNS. MORE RIGOROUS OVERSIGHT THROUGH A TERM PERMIT MAY BE
APPROPRIATE BECAUSE OF THE TYPE OF THE WELL, ITS PAST OPERATING HISTORY,
AND THE RISKS TO THE ENVIRONMENT WHICH IT MAY PRESENT. FOR THE FIXED
TERM PERMITS, PERMITS OF LESS THAN 10 YEAR DURATIONS WILL BE A NORMAL
OCCURRENCE, BOTH IN CONSIDERATION OF VARYING ENVIRONMENTAL RISKS AND AS
PERMIT DURATIONS WILL BE SET TO ALLOW PERMITS FOR THE SAME FACILITY TO
EXPIRE AND BE REISSUED AT THE SAME TIME (SEE SECTION 124.4 AND
ACCOMPANYING PREAMBLE). ANOTHER EXAMPLE OF SHORT-TERM PERMITS IS THE
"SHORT-TERM PERMIT POLICY" FOR NPDES PERMITS (SEE SECTION 122.64),
COORDINATING PERMIT DURATIONS SO AS TO INCORPORATE BAT EFFLUENT
LIMITATIONS MANDATED BY THE NRDC V. TRAIN SETTLEMENT AGREEMENT.
(1) PROPOSED SECTION 122.12 (NOW 122.10) SOLICITED COMMENTS ON THE
POSSIBLE NEED FOR UNIFORMITY IN TWO REQUIREMENTS FOR SCHEDULES OF
COMPLIANCE: (A) THE DEADLINE FOR PERMITTEES TO GIVE NOTICE OF
COMPLIANCE OR NONCOMPLIANCE (14 DAYS FROM THE COMPLIANCE DATE FOR EPA
PROGRAMS, BUT 30 DAYS FOR UIC PROGRAMS AND FOR ALL STATE PROGRAMS); AND
(B) THE MAXIMUM INTERVAL BETWEEN COMPLIANCE DATES (9 MONTHS FOR EPA
PROGRAMS, 1 YEAR FOR STATES).
IN BOTH INSTANCES, COMMENTERS HEAVILY FAVORED GREATER UNIFORMITY.
NOT A SINGLE STATE SPECIFICALLY COMMENTED IN FAVOR OR THE GREATER
LATITUDE FOR STATES WHICH APPEARED IN THE PROPOSAL. AS FOR UNIFORMITY
AMONG PROGRAMS, ALMOST ALL COMMENTERS STATED THAT THEY FAVOR-D IT, AND
THEN WENT ON TO LEND SUPPORT TO THE LESS STRINGENT REQUIREMENTS OF 30
DAYS AND ONE YEAR.
EPA AGREES WITH COMMENTERS THAT TIMING REQUIREMENTS ASSOCIATED
WITH COMPLIANCE SCHEDULES IS AN AREA WHERE ONE OF THE POTENTIAL
BENEFITS OF CONSOLIDATION -- ELIMINATION OF ARBITRARY DIFFERENCES
IN REQUIREMENTS SHARED BY SEVERAL PROGRAMS -- CAN BE REALIZED.
(A) THE NPDES PROGRAM, WHICH HAS HAD SEVERAL YEARS OF EXPERIENCE IN
MONITORING PERMIT COMPLIANCE AND IS THE ONLY PROGRAM COVERED IN THESE
REGULATIONS WITH FEDERAL ENFORCEMENT EXPERIENCE, HAS FOUND THAT THE
14-DAY NOTICE REQUIREMENT IS AN IMPORTANT ELEMENT OF STATE AND REGIONAL
OVERSIGHT. IN SOME CASES DELAY IN REPORTING COULD RESULT IN DAMAGE TO
THE ENVIRONMENT. BALANCED AGAINST THIS POSSIBILITY, THERE IS LITTLE
INCREASED BURDEN IN REQUIRING PROMPT NOTICE, BECAUSE NOTICE IS REQUIRED
IN ANY EVENT, AND THE PERMITTEE KNOWS OR SHOULD KNOW THAT IT IS IN
NONCOMPLIANCE ON THE DATE SPECIFIED FOR THE REQUIREMENT IN THE SCHEDULE.
EPA HAS THEREFORE DETERMINED THAT THE DEADLINE OF 14 DAYS AFTER THE
COMPLIANCE DATE FOR NOTICE SHOULD BE RETAINED AS A UNIFORM REQUIREMENT
FOR ALL PROGRAMS AND, IN VIEW OF COMMENTS IN FAVOR OF UNIFORMITY, FOR
STATES AS WELL.
(B) STATING A MAXIMUM TIME BETWEEN INTERIM COMPLIANCE DATES LIMITS
THE DIRECTOR' S DISCRETION IN WRITING PERMIT CONDITIONS. THE DATES HE
OR SHE SETS FOR COMPLIANCE WILL DETERMINE HOW SOON INFORMATION ON
NONCOMPLIANCE WILL BE RECEIVED. TIMELY RECEIPT OF INFORMATION IS
PARTICULARLY IMPORTANT FOR STATE-ADMINISTERED PROGRAMS, WHERE EPA WILL
BE RELYING ON SUMMARIES OF COMPLIANCE SCHEDULE VIOLATIONS CONTAINED IN
QUARTERLY OR ANNUAL NONCOMPLIANCE REPORTS. IN THE INTEREST OF
UNIFORMITY, EPA HAS DETERMINED THAT A MAXIMUM ONE-YEAR INTERVAL BETWEEN
COMPLIANCE DATES IS PRACTICAL. BECAUSE THE PROVISION SETS FORTH THE
MAXIMUM INTERVAL BETWEEN DEADLINES, THE DIRECTOR IS ALWAYS FREE TO SET
DEADLINES CLOSER TGETHER WHEN MORE RIGOROUS OVERSIGHT IS IMPORTANT.
NORMALLY "MILESTONE" EVENTS OCCUR AT INTERVALS SHORTER THAN ONE YEAR.
UNDER SECTION 122.10(A)(3)(II), DIRECTORS MUST REQUIRE PROGRESS REPORTS
WHERE IT IS IMPRACTICAL TO SPECIFY COMPLIANCE INTERVALS OF ONE YEAR OR
LESS.
(2) A COMMENT FOLLOWING PROPOSED SECTION 122.12(A) STATED THAT NPDES
NEW DISCHARGERS, SOURCES WHICH RECOMMENCE DISCHARGE AFTER TERMINATING
OPERATIONS, AND THOSE SOURCES WHICH HAD BEEN INDIRECT DISCHARGERS WHICH
COMMENCE DISCHARGING INTO WATERS OF THE UNITED STATES, DO NOT QUALIFY
FOR COMPLIANCE SCHEDULES. THIS COMMENT WAS TAKEN FROM THE LANGUAGE OF
SECTION 122.17(F) OF THE NPDES REGULATIONS. FINAL SECTION 122.10(A)
REINSTATES THIS LANGUAGE AS PART OF THE TEXT OF THE REGULATION RATHER
THAN AS A COMMENT TO EMPHASIZE THE REGULATORY EFFECT OF THE SECTION.
IN ADDITION, THE PROPOSED COMMENT TO SECTION 122.12(A) FAILED TO
SPECIFY THAT NPDES NEW SOURCES ARE INELIGIBLE FOR SCHEDULES OF
COMPLIANCE.
THE COMMENT WAS THUS INCONSISTENT WITH SECTION 122.17(F) OF THE FINAL
JUNE 7, 1979 NPDES REGULATIONS AND WITH SECTION 306(E) OF CWA. THIS
OMISSION HAS BEEN CORRECTED IN THE FINAL REGULATIONS.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 022 OF 225
COSTLE DM ADMINISTRATOR
EPA
113521
REGULATIONS
SOME COMMENTERS QUESTIONED WHETHER THE COMMENT TO PROPOSED SECTION
122.12(A) (AND THE CORRESPONDING PROVISION IN SECTION 122.81(D)(4))
COULD BE CONSTRUED TO MEAN THAT DISCHARGERS SUBJECT TO ITS PROVISIONS
ARE NEVER ELIGIBLE FOR SCHEDULES OF COMPLIANCE, EVEN FOR PERMITS ISSUED
AFTER THE FIRST PERMIT. EPA DID NOT INTEND THIS INTERPRETATION AND THUS
HAS CLARIFIED THE SECTION TO INDICATE THAT THESE DISCHARGERS WILL BE
INELIGIBLE FOR SCHEDULES OF COMPLIANCE ONLY FOR THE FIRST PERMITS ISSUED
TO THEM.
AN ADDITIONAL CHANGE IN THE TEXT OF FINAL SECTION 122.10(A) (AND A
PARRELLEL CHANGE IN SECTION 122.67(D)(4), PROPOSED AS SECTION
122.81(D)(4)) ALLOWS NEW DISCHARGERS WHICH COMMENCED DISCHARGE BEFORE
AUGUST 13, 1979 (THE EFFECTIVE DATE OF THE JUNE 7, 1979 NPDES
REGULATIONS), TO QUALIFY FOR SCHEDULES OF COMPLIANCE. BECAUSE A NUMBER
OF NEW DISCHARGERS HAD BEGUN DISCHARGE BEFORE THE AUGUST DATE WITH EPA'S
CONSENT PENDING AGENCY ACTION ON THEIR PERMIT APPLICATIONS, EPA BELIEVES
IT WOULD BE UNFAIR TO RETROACTIVELY DECLARE SUCH DISCHARGERS INELIGIBLE
FOR SCHEDULES OF COMPLIANCE.
(3) SEVERAL COMMENTERS, INCLUDING THE STATE OF NEW MEXICO, STATED
THAT THEY THOUGHT COMPLIANCE SCHEDULES ARE UNNECESSARY FOR THE UIC
PROGRAM. THIS SECTION WILL NOT DISRUPT THOSE STATE ADMINISTERED UIC
PROGRAMS WHICH HAVE USED COMPLIANCE SCHEDULES INFREQUENTLY. THOSE
STATES ARE FREE TO CONTINUE THEIR PRACTICE OF REQUIRING FULL COMPLIANCE
ON "STARTUP." HOWEVER, THE UIC PROGRAM DOES CONTAIN REQUIREMENTS FOR
WHICH COMPLIANCE SCHEDULES MAY BE APPROPRIATE. FOR EXAMPLE, ALTHOUGH
STATES MAY, IF THEY WISH, REQUIRE EVEN EXISTING OPERATIONS TO STOP
INJECTION PENDING PERMIT COMPLIANCE, THE REGULATIONS REQUIRE THAT, IF
STATES DO NOT CHOOSE THIS ROUTE, PERMITS FOR EXISTING WELLS ARE AT LEAST
REQUIRED TO CONTAIN SCHEDULES FOR COMPLIANCE WITH CONSTRUCTION
REQUIREMENTS; SEE SECTION 122.42(A).
(4) SOME COMMENTERS EXPRESSED CONCERN ABOUT THE APPLICABILITY OF
SCHEDULES OF COMPLIANCE TO STATE 404 PERMITS. UNDER PROPOSED SECTION
122.11(A) (NOW SECTION 122.10(A)), PERMITS WILL SPECIFY SCHEDULES OF
COMPLIANCE ONLY "WHERE APPROPRIATE." BECAUSE CWA DOES NOT ESTABLISH A
SERIES OF DEADLINES FOR THE 404 PROGRAM COMPARABLE TO THE "BPT" AND
"BAT" SCHEDULES FOR THE NPDES PROGRAM AND BECAUSE 404 ACTIVITIES ARE
GENERALLY NOT CONTINUING ONES, SECTION 404 PERMITS WILL RARELY SPECIFY
SCHEDULES OF COMPLIANCE.
(5) SEVERAL ENVIRONMENTAL GROUPS AND OTHER COMMENTERS ADVOCATED A
TIME LIMIT, SUCH AS TWO YEARS, FOR COMPLIANCE WITH RCRA REQUIREMENTS.
THEY CITE THE IMPORTANCE OF BRINGING EXISTING HAZARDOUS WASTE MANAGEMENT
FACILITIES INTO FULL COMPLIANCE WITH RCRA SECTION 3004 REQUIREMENTS
AFTER THEY HAVE OBTAINED PERMITS, AS WELL AS THE NEED FOR AN INCENTIVE
FOR SUCH FACILITIES TO BEGIN UPGRADING DURING THE INTERIM PERIOD IN
ANTICIPATION OF STRICT PERMIT CONDITIONS. EPA AGREES THAT SPEEDY
COMPLIANCE BY HWM FACILITIES WITH SECTION 3004 STANDARDS IS IMPORTANT,
AND HAS AMENDED SECTION 122.10(A) TO REQUIRE COMPLIANCE "AS SOON AS
POSSIBLE" FOR ALL COMPLIANCE SCHEDULES, NOT JUST THOSE IN NPDES PERMITS.
SEE ALSO SECTION 122.10(A)(1)(II). HOWEVER, WE BELIEVE THAT IT WOULD
BE A MISTAKE TO IMPOSE A STRICT DEADLINE FOR RCRA OR OTHER PROGRAM
COMPLIANCE, BECAUSE IT WOULD ELIMINATE ANY AUTHORITY TO SHAPE THE
DURATION OF COMPLIANCE SHCEDULES AS THE CIRCUMSTANCES WARRANT. EPA
BELIEVES THAT DECISIONS AS TO THE DURATION OF COMPLIANCE SCHEDULES
SHOULD BE MADE THROUGH THE PERMIT-ISSUANCE PROCESS, WHERE THERE IS FULL
OPPORTUNITY FOR PUBLIC PARTICIPATION AND FOR INTERACTION BETWEEN THE
DIRECTOR AND THE APPLICANT OR PERMITTEE. A REQUIREMENT FOR STRICT
INTERIM COMPLIANCE DEADLINES COUPLED WITH THE NEW FIXED-TERM PERMIT
REQUIREMENTS OF SECTION 122.9 SHOULD HELP SUPPORT QUICK UPGRADING OF
EXISTING HWM FACILITIES.
LIKEWISE, A COMMENTER SUGGESTED THAT IT IS UNFAIR TO REQUIRE
COMPLIANCE AS SOON AS POSSIBLE, BECAUSE THIS FAVORS THE COMPANY WHOSE
RESOURCES OR WHEREWITHAL MAKE IT IMPOSSIBLE TO COMPLY AS SOON AS SOME
OTHER COMPANY WITH SUPERIOR CAPABILITIES. IT IS IMPORTANT TO WRITE A
COMPLIANCE SCHEDULE WITH CONSIDERATION FOR THE TYPE OF REQUIREMENT AT
ISSUE AND THE SERIOUSNESS TO THE ENVIRONMENT OF DELAY IN MEETING IT.
AGAIN, THE PERMITTING PROCESS IS THE PROPER FORUM FOR CONSIDERATION OF
THESE ISSUES, RATHER THAN, FOR EXAMPLE, ELIMINATING ALL DISTINCTIONS BY
ALLOWING ALL NPDES SCHEDULES TO REQUIRE COMPLIANCE MERELY BY THE
STATUTORY DEADLINE.
(6) PROPOSED SECTION 122.12(B) AND (C) HAS BEEN COMBINED IN FINAL
SECTION 122.10(B) TO PROVIDE ONE "ALTERNATIVE SCHEDULES OF COMPLIANCE"
PROVISION APPLICABLE TO ALL RCRA, UIC, AND NPDES SITUATIONS WHERE A
FACILITY CHOOSES TO TERMINATE OPERATIONS RATHER THAN MEET PERMIT
REQUIREMENTS. THE RCRA AND UIC ALTERNATIVE SCHEDULES OF COMPLIANCE NOW
FOLLOW THE NPDES MODEL.
A PRINCIPAL FEATURE OF THE RCRA AND UIC PROPOSAL WAS THAT PERMITTEES
COULD SWITCH BACK AND FORTH BETWEEN THE SCHEDULE LEADING TO COMPLIANCE
AND THE SCHEDULE LEADING TO TERMINATION. THAT PROVISION WAS SUBJECT TO
THE VERY ABUSES WHICH ALL OF THE ALTERNATIVE SCHEDULE OF COMPLIANCE
PROVISIONS ARE DESIGNED TO PREVENT: NAMELY, WHEN A FACILITY CHOOSES TO
TERMINATE RATHER THAN COMPLY WITH PERMIT REQUIREMENTS BY ASSURING EPA
THAT IT IS GOING TO TERMINATE OPERATIONS, BUT THEN CHANGES ITS MIND
EITHER IN GOOD OR IN BAD FAITH, AND THEREFORE REQUIRES MORE TIME TO MAKE
UP WHAT WAS LOST WHILE PRESUMPTIVELY ON THE ROAD TO TERMINATION. TO
PREVENT THIS FROM HAPPENING, IT IS NECESSARY TO REQUIRE THE PERMITTEE TO
COMMIT ITSELF TO TERMINATING IF IT IS TO BE PLACED ON A TERMINATION
SCHEDULE, AS IN PROPOSED SECTION 122.12(C) FOR NPDES. SIMILARLY, THE
COMMITMENT HAS TO BE "A FIRM PUBLIC COMMITMENT SATISFACTORY TO THE
DIRECTOR." HOWEVER, THE REQUIREMENT THAT A BOND BE POSTED TO BACK UP THE
COMMITMENT, WHICH APPEARED IN PROPOSED SECTION 122.12(C), HAS BEEN
ELIMINATED. SEVERAL COMMENTERS ARGUED THAT EPA LACKED LEGAL AUTHORITY
FOR SUCH A BOND UNDER THE CLEAN WATER ACT, AND THE NEED FOR A BOND HAS
NOT YET BEEN DEMONSTRATED IN THE CASE OF RCRA OR UIC. AN ADDITIONAL
CHANGE FROM THE PROPOSAL IS THAT ALTERNATIVE SCHEDULES OF COMPLIANCE ARE
NOW AVAILABLE TO RCRA AND UIC PERMITTEES IN ADDITION TO APPLICANTS, AS
IT WAS LIMITED IN THE PROPOSAL. ALTERNATIVE SCHEDULES FOR APPLICANTS
WILL, AS WITH PERMITTEES, BE DETERMINED THROUGH THE PERMIT-ISSUANCE
PROCESS.
THE ALTERNATIVES SCHEDULES OF COMPLIANCE PROVISION IS WRITTEN TO
ALLOW THE FINAL TERMINATION DATE IN A SCHEDULE LEADING TO TERMINATION TO
BE SOMEWHAT LATER THAN THE FINAL COMPLIANCE DATE IN A SCHEDULE LEADING
TO COMPLIANCE. HOWEVER, THE SCHEDULE LEADING TO TERMINATION MUST STILL
LEAD TO "TIMELY" CESSATION OF ACTIVITIES. IT IS NOT EPA'S INTENT FOR
THE TERMINATION ROUTE IN THIS SECTION TO BE USED AS A MEANS OF UNDULY
DELAYING REQUIREMENTS THAT ARE APPLICABLE TO THE FACILITY. THE DELAY
MUST BE JUDGED ON A CASE-BY-CASE BASIS CONSIDERING THE TYPE OF PERMIT
REQUIREMENT AND THE HARM OR POTENTIAL HARM TO THE ENVIRONMENT THAT THE
NONCOMPLIANCE OR A DELAYED SCHEDULE WILL CAUSE. IN NO EVENT SHOULD THE
DATE FOR CESSATION GREATLY EXCEED WHAT IT WOULD HAVE BEEN FOR
COMPLIANCE.
NOR IS IT EPA'S INTENT THAT A SCHEDULE OF COMPLIANCE LEADING TO
CESSATION OF ACTIVITIES RELIEVE A PERMITTEE FROM APPLICABLE REQUIREMENTS
ANY MORE THAN ANY OTHER SCHEDULE OF COMPLIANCE. OBVIOUSLY, IF A
PERMITTEE WILL CEASE ACTIVITIES, MANY PERMIT REQUIREMENTS WHICH APPLY
ONLY TO OPERATING FACILITIES WILL NOT HAVE TO BE COMPLIED WITH AFTER
CESSATION. SUCH REQUIREMENTS, TO THE EXTENT THAT IT WOULD NOT CAUSE
HARM TO THE ENVIRONMENT, MANY ALSO BE RELAXED DURING THE PERIOD LEADING
UP TO CESSATION WHEN THE PERMITTEE IS FIRMLY COMMITTED TO THE CESSATION
COURSE. TO THE EXTENT THAT REQUIREMENT FOR OPERATING FACILITIES ARE
NECESSARY TO PROTECTION OF HUMAN HEALTH AND THE ENVIRONMENT, COMPLIANCE
MAY NOT BE EXCUSED.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 023 OF 225
COSTLE DM ADMINISTRATOR
EPA
113522
REGULATIONS
AT A MINIMUM, A RCRA (OR UIC INJECTOR OF HAZARDOUS WASTE) PERMITTEE
ON A CLOSURE SCHEDULE SHOULD BE REQUIRED TO MEET RCRA INTERIM STATUS
STANDARDS, JUST AS A FACILITY WITHOUT A PERMIT WOULD BE.
FINALLY, RCRA (AND CERTAIN UIC) PERMIT REQUIREMENTS WHICH PERTAIN
TO CLOSURE AND POST-CLOSURE, INCLUDING FINANCIAL RESPONSIBILITY,
ARE APPLICABLE TO A CLOSING FACILITY, REGARDLESS OF WHETHER IT IS
ON A SCHEDULE LEADING TO CESSATION OF ACTIVITIES, AND THE SCHEDULE
MUST ENSURE COMPLIANCE WITH THESE REQUIREMENTS.
SEVERAL COMMENTERS NOTED THAT THE PROPOSAL REQUIRED THE PERMITTEE OR
APPLICANT TO DECIDE TO CEASE CONDUCTING ACTIVITIES BEFORE THE DIRECTOR
DETERMINES WHAT THE COMPLIANCE SCHEDULE WOULD BE IF THAT DECISION WERE
REVERSED. THEY SUGGESTED THAT THE DIRECTOR SHOULD BE REQUIRED TO
DETERMINE THE COMPLIANCE SCHEDULE FIRST TO HELP THE PERMITTEE MAKE A
DECISION. EPA HAS NOT ACCEPTED THIS COMMENT. HOWEVER, WHERE NEW
PERMITS ARE AT ISSUE, EPA ENCOURAGES PERMITTEES TO CONDUCT THEIR
PERMITTING AGENCIES TO DISCUSS COMPLIANCE OR CLOSURE ALTERNATIVES.
WHERE EXISTING PERMITS ARE CONCERNCD, THE PARAGRAPH IS DESIGNED TO GIVE
THE DIRECTOR AN OPTIONAL MECHANISM FOR MODIFYING PERMITS WHEN THE
PERMITTEE HAS MADE THE DECISION TO TERMINATE. PRESUMABLY SUCH A
PERMITTEE ALREADY KNOWS WHAT ITS SCHEDULE LEADING TO COMPLIANCE LOOKS
LIKE.
EPA HAS NOT RETAINED THE LANGUAGE OF THE PROPOSAL WHICH COUPLED THE
CESSATION SCHEDULE TO COMPLIANCE WITH THE CLOSURE REQUIREMENTS BY THE
"PREDICTED CLOSURE DATE." INSTEAD, THE FINAL PROVISION REQUIRES TIMELY
COMPLIANCE IN GENERAL, THUS ELIMINATING ANY IMPLICATION THAT ONLY THE
CLOSURE REQUIREMENTS ARE OF CONCERN WHEN A FACILITY IS ON A CLOSURE
SCHEDULE. ALSO, SEVERAL COMMENTERS SUGGESTED THAT THE "PREDICTED
CLOSURE DATE" SHOULD BE PREDICTED BY THE PERMITTEE OR APPLICANT RATHER
THAN THE DIRECTOR. AS DISUCSSED ABOVE, THE END DATE OF ANY SCHEDULE
LEADING TO CESSATION IS APPROPRIATELY DETERMINED THROUGH THE
PERMIT-ISSUANCE PROCESS.
SOME COMMENTS EXPRESSED CONCERN THAT THE SCHEDULE LEADING TO CLOSURE
OF A RCRA FACILITY DID NOT ADEQUATELY ADDRESS THE REQUIREMENTS WHICH
PERTAIN TO CLOSURE ITSELF AND POST-CLOSURE. AS THE PROVISION IS NOW
WRITTEN, IT REFERS TO "CESSATION OF REGULATED ACTIVITIES." FOR A RCRA
FACILITY, THIS MEANS CEASING TO ACCEPT HAZARDOUS WASTE WHICH, UNDER 40
CFR PART 264, SUBPART G, TRIGGERS THE CLOSURE PLAN, WHICH WILL CONTAIN
ITS OWN SCHEDULE FOR SUBSEQUENT EVENTS.
SEVERAL COMMENTERS NOTED THE INACCURACY OF THE COMMENT THAT
"GENERALLY INSTALLATION OF MONITORING EQUIPMENT IS NOT REQUIRED UNDER
THE UIC PROGRAM" IN PROPOSED SECTION 122.14 (NOW SECTION 122.11). EPA
HAS DELETED THE STATEMENT.
SEVERAL OBJECTIONS WERE RECEIVED THAT NPDES PERMITTEES SHOULD NOT
HAVE TO REFER IN THEIR DISCHARGE MONITORING REPORTS TO DATA ON INTERNAL
WASTE STREAMS AND DATA COLLECTED BY THIRD PARTIES. THE COMMENT AND THE
REQUIREMENT HAVE BEEN DELETED.
SEVERAL OF THE PROVISIONS WHICH APPEARED IN THIS SECTION OF THE
PROPOSAL HAVE BEEN RELOCATED TO FOLLOW THE FORMAT OF THE FINAL
REGULATIONS. THE REQUIREMENT THAT MONITORING DATA BE "REPRESENTIVE" OF
THE MONITORED ACTIVITY NOW APPEARS IN SECTION 122.7(J); RECORDKEEPING
REQUIREMENTS ARE ALSO IN SECTION 122.7(J). THE REQUIREMENT THAT DMRS BE
USED FOR NPDES REPORTING NOW APPEARS IN SECTION 122.60. FINALLY,
PROPOSED PARAGRAPH (E), WHICH REPEATED REQUIREMENTS FOR COMPLIANCE
SCHEDULE REPORTS, HAS BEEN DELETED.
ONE COMMENTER EXPRESSED CONCERN THAT THE RECORDKEEPING AND AND
REPORTING REQUIREMENTS FOR 404 PERMITTEES IN PROPOSED SECTIONS 122.14
AND 122.12 (NOW SECTION 122.11) GO BEYOND THE INTENT OF CEA,
PARTICULARLY SECTION 308(C). HOWEFER, UNDER SECTION 404(H)(1)(B) (AND
ITS NPDES COUNTERPART, SECTION 402(B)(2)(A) AND (B)), ONE CONDITION OF
STATE PROGRAM APPROVAL IS THE STATE'S AUTHORITY TO ISSUE PERMITS WHICH
APPLY, AND ASSURE COMPLIANCE WITH ALL APPLICABLE REQUIREMENTS OF SECTION
308. SECTION 308 GIVES THE ADMINISTRATOR AUTHORITY TO REQUIRE
RECORDKEEPING, MONITORING, REPORTING, AND A RIGHT OF ENTRY. THESE
REGULATIONS COMPLY WITH THE STATUTE BY ESTABLISHING RECORDKEEPING AND
REPORTING REQUIREMENTS BASED ON THOSE USED BY THE EPA AND STATE NPDES
PROGRAMS. HOWEVER, MONITORING REQUIREMENTS FOR 404 PERMITTEES MAY VARY
IN REQUIRED FREQUENCY OR EXTENT AS APPROPRIATE TO ASSURE COMPLIANCE WITH
40 CFR 230. PART 230 DOES NOT CONTAIN SPECIFIC MONITORING REQUIREMENTS
BUT WILL BE USED TO DETERMINE WHAT MONITORING IS APPROPRIATE.
PROPOSED SECTION 122.83 (NOW DELETED) DIRECTED THAT EPA-ISSUED NPDES
PERMITS BE CONSISTENT WITH THE REQUIREMENTS OF SEVERAL LISTED FEDERAL
LAWS AND EXECUTIVE ORDERS. SEVERAL COMMENTERS OBJECTED TO THIS SECTION
BECAUSE IT WAS TOO BROADLY WRITTEN. THE SECTION HAS BEEN REWRITTEN (AS
SECTION 122.12) TO ELIMINATE REFERENCE TO THOSE FEDERAL LAWS THAT DO NOT
REQUIRE ANY PARTICULAR ACTION BY THE REGIONAL ADMINISTRATOR AND TO
EXPLAIN THE RELEVANCE OF THE REMAINING LAWS LISTED. THE PROVISION IS NO
LONGER LIMITED TO NPDES PERMITS BECAUSE THE REQUIREMENTS OF THESE LAWS
MAY APPLY TO OTHER FEDERALLY ISSUED PERMITS. THIS SECTION DOES NOT
IMPOSE ANY LEGAL REQUIREMENTS BEYOND THOSE IMPOSED BY THE TERMS OF THE
LAWS THEMSELVES. THE PURPOSE OF THE SECTION IS TO INFORM THE PUBLIC
ISSUERS OF THE REQUIREMENTS APPLICABLE TO THE PERMIT PROGRAMS REGULATED
UNDER THIS PART.
EPA HAS UNDER CONSIDERATION INSERTING A PROVISION REQUIRING PERMIT
WRITERS TO COMPLY WITH TWO EXECUTVE ORDERS, EXECUTIVE ORDER 11990
(PROTECTION OF WETLANDS), AND EXECUTIVE ORDEF 11988 (PRESERVATION OF
FLOODPLAINS). EPA INCLUDED THESE EXECUTIVE ORDERS IN PROPOSED SECTION
122.83, "SPECIAL CONSIDERATIONS UNDER FEDERAL LAW." AS PROPOSED, THE
ORDERS WOULD ONLY HAVE APPLIED TO NPDES PERMITS. A NUMBER OF COMMENTERS
OBJECTED TO THIS PROPOSAL ON THE GROUNDS THAT THE EXECUTIVE ORDERS WERE
UNRELATED TO SPECIFIC STATUTORY REQUIREMENTS IN THE CLEAN WATER ACT.
EPA WISHES TO REASSESS THE APPLICABILITY OF THESE EXECUTIVE ORDERS IN
THE CONTEXT OF NOT ONLY THE NPDES PROGRAM, BUT THE UIC AND RCRA PROGRAMS
AS WELL. CONSEQUENTLY, EPA INVITES COMMENT ON THE APPROPRIATE SCOPE AND
APPLICABILITY OF THE REQUIREMENTS OF THESE TWO EXECUTIVE ORDERS AS
APPLIED TO NPDES PERMITS, RCRA PERMITS, AND UIC PERMITS. ANY SUCH
COMMENTS MUST BE SUBMITTED TO THE ADDRESS LISTED BELOW ON OR BEFORE JULY
18, 1980.
EDWARD A. KRAMER (EN-336), O-FICE OF WATER ENFORCEMENT, ENVIRONMENTAL
PROTECTION AGENCY, WASHINGTON, D.C. 20460.
(1) NEW SECTION 122.13(A) STATES, WITH SOME LIMITATIONS, THAT
"COMPLIANCE WITH A PERMIT DURING ITS TERM CONSTITUTES COMPLIANCE, FOR
PURPOSES OF ENFORCEMENT, WITH" THE APPROPRIATE ACT. THIS "SHIELD"
PROVISION IS ONE OF THE CENTRAL FEATURES OF EPA'S ATTEMPT TO PROVIDE
PERMITTEES WITH MAXIMUM CERTAINTY DURING THE FIXED TERMS OF THEIR
PERMITS. (FOR A DISCUSSION OF PERMIT DURATIONS, SEE PREAMBLE TO SECTION
122.9) THIS NEW PROVISION GIVES A PERMITTEE THE SECURITY OF KNOWING
THAT, IF IT COMPLIES WITH ITS PERMIT, IT WILL NOT BE ENFORCED AGAINST
FOR VIOLATING SOME REQUIREMENT OF THE APPROPRIATE ACT WHICH WAS NOT A
REQUIREMENT OF THE PERMIT. (OF COURSE COMPLIANCE WITH A PERMIT IS NOT A
DEFENSE TO ACTIONS BROUGHT UNDER THE EMERGENCY PROVISIONS OF SECTIONS
7003 OF RCRA, 504 OF CWA OR 1431 OF SDWA.)
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 024 OF 225
COSTLE DM ADMINISTRATOR
EPA
113523
REGULATIONS
A SIMILAR PROVISION ALREADY APPLIED TO NPDES PERMITS, AS EXPLICITLY
REQUIRED BY SECTION 402(K) OF CWA, AND APPEARED IN SECTION 122.65 OF THE
PROPOSAL. BECAUSE THE PROVISION IS NOW GENERALLY APPLICABLE, SECTION
122.65 HAS BEEN ELIMINATED. FOR STATE 404 PROGRAMS, NEW SECTION
122.13(A) IS SIMILARLY REQUIRED BY THE EXPLICIT WORDING OF SECTION
404(P) OF CWA. THE SAFE DRINKING WATER ACT IS MORE GENERALLY PHRASED,
BUT THERE IS NOTHING IN IT THAT SPEAKS AGAINST APPLYING THE "SHIELD" TO
UIC PERMITS AS WELL. HOWEVER, THE "SHIELD" DOES NOT APPLY TO CLASS II
OR III WELL UIC PERMITS, BECAUSE IT IS IMPORTANT TO BE ABLE TO UPGRADE
PERMIT REQUIREMENTS FOR PERMITS WHICH DO NOT INCORPORATE APPLICABLE
REQUIREMENTS DURING PERIODIC REISSUANCE.
WHERE RCRA IS CONCERNED, AUTHORITY FOR THE "SHIELD" IS MORE
COMPLICATED. AS THE PREAMBLE TO THE SECTION 3004 REGULATIONS POINTS
OUT, RCRA REQUIRES COMPLIANCE BY PERSONS SUBJECT TO SUBTITLE C WITH ALL
THE REQUIREMENTS OF THAT SUBTITLE, AND AUTHORIZES ENFORCEMENT OF ALL
THOSE REQUIREMENTS. THE REQUIREMENT TO OBTAIN A PERMIT IS ONE OF THE
SECTION 3004 REQUIREMENTS, BUT NOTHING IN THE STATUTE STATES THAT
COMPLIANCE WITH THE PERMIT IS DEEMED COMPLIANCE WITH OTHER PROVISIONS OF
SUBTITLE C.
NEVERTHELESS, EPA BELIEVES THAT THE "SHIELD" IS BENEFICIAL TO THE
PRACTICAL WORKING OF THE RCRA PERMIT PROGRAM, AS IT IS TO THE OTHER
PERMIT PROGRAMS. EPA AGREES THAT ONE OF THE MOST USEFUL PURPOSES OF
ISSUING A PERMIT IS TO PRESCRIBE WITH SPECIFICITY THE REQUIREMENTS THAT
A FACILITY WILL HAVE TO MEET, BOTH SO THAT THE FACILITY CAN PLAN AND
OPERATE WITH KNOWLEDGE OF WHAT RULES APPLY, AND SO THAT THE PERMITTING
AUTHORITY CAN REDIRECT ITS STANDARD SETTING EFFORTS ELSEWHERE. IF ALL
THE SECTION 3004 STANDARDS WERE FULLY ENFORCEABLE AGAINST A PERMITTED
RCRA FACILITY EVEN THOUGH THEY WERE NOT REFLECTED IN THE PERMIT (OR,
PERHAPS, NOT CONSISTENT WITH IT), FACILITIES WOULD BE EXPOSED TO
UNAVOIDABLE UNCERTAINTY AS TO THE STANDING OF THEIR OPERATIONS UNDER THE
LAW. IN ADDITION, SUCH A PROVISION WOULD INCREASE PRESSURE ON EPA AND
STATES TO KEEP THE PERMIT CONDITIONS APPLICABLE TO A GIVEN FACILITY IN A
PERPETUAL STATE OF RE-EXAMINATION. EPA'S RESOURCES WILL AT MOST BE
BARELY SUFFICIEN TO ISSUE AND RENEW RCRA PERMITS, AND REVIEW STATE
PERMITS, AT THE TIME OF THEIR INITIAL ISSUANCE AND PERIODIC RENEWAL.
EPA AND STATES ARE LIKELY TO MAKE MUCH BETTER USE OF THEIR RESOURCES IF
THEY RESTRICT EXAMINATION OF PERMITS BETWEEN ISSUANCE AND RENEWAL TO
MONITORING COMPLIANCE AND TAKING ENFORCEMENT ACTION WHERE NECESSARY.
ACCORDINGLY, IN THERS REGULATIONS EPA IS ANNOUNCING A PRINCIPLE BY
WHICH IT WILL BIND ITSELF -- THAT IT WILL NOT TAKE ENFORCEMENT ACTION
AGAINST ANY PERSON WHO HAS RECEIVED A FINAL RCRA PERMIT EXCEPT FOR
NONCOMPLIANCE WITH THE CONDITIONS OF THAT PERMIT. (FOR REASONS SET OUT
AT LENGTH IN THE PREAMBLE TO THE SECTION 3004 REGUATIONS, THIS
SELF-RESTRICTION DOES NOT APPLY TO THE INTERIM STATUS STANDARDS
APPLICABLE TO FACILITIES WHICH HAVE NOT RECIIVEE A FINAL PERMIT.)
FOR ALL PROGRAMS, THE SHIELD PROVISION APPLIES TO ENFORCEMENT ACTIONS
BY EPA OR AN APPROVED STATE, AS WELL AS TO ENFORCEMENT THROUGH CITIZEN
SUITS, EPA RECOGNIZES THAT THE RCRA "CITIZEN SUIT" PROVISION ALLOWS
PRIVATE ENFORCEMENT ACTIONS AGAINST RCRA PERMITS WITHOUT LIMITATION.
HOWEVER, BECAUSE EPA PLANS TO SPECIFY ALL THE REGULATORY REQUIREMENTS
APPLICABLE TO AN INDIVIDUAL FACILITY IN THE PERMIT FOR THAT FACILITY, AS
A PRACTICAL MATTER THERE WILL BE NOTHING BEYOND THE PERMIT CONDITIONS
FOR A CITIZEN SUIT TO ENFORCE. INDEED, IF A PLANTIFF IN SUCH A SUIT
ARGUED THAT REGULATORY REQUIREMENTS OUTSIDE THE CONDITIONS OF THE PERMIT
SHOULD BE APPLIED AND ENFORCED, THAT WOULD PROBABLY AMOUNT TO AN
IMPROPER COLLATERAL ATTACH ON THE CONDITIONS OF THE PERMIT.
AS REQUIRED BY CWA, THE SHIELD DOES NOT APPLY TO SECTION 307 TOXIC
EFFLUENT STANDARDS OR PROHIBITIONS FOR NPDES PEFMITS. IN ADDITION,
ALTHOUGH A PERMIT MAY SPECIFY MONITORING AND REPORTING REQUIREMENTS, EPA
BELIEFES THAT THE "SHIELD" DOES NOT PRECLUDE IT FROM INVOKING ITS
REPORTING AND INFORMATION GATHERING AUTHORITY AS SPECIFIED IN SECTIONS
3004 OF RCRA, 1445 OR SDWA, AND 308 OF CWA, WHICH OPERATE INDEPENDENTLY
OF THE PERMIT DOCUMENT. UNDER THESE AUTHORITIES, THE DIRECTOR COULD
REQUIRE A REPORT, OR CERTAIN MONITORING, WITHOUT MODIFYING A PERMIT AND
REGARDLESS OF WHETHER THE PERMITTEE WERE COMPLYING WITH THE MONITORING
OR REPORTING REQUIREMENTS OF ITS PERMIT. HOWEVER, IF THE CHANGED
MONITORING OR REPORTING DUTIES WERE OF A CONTINUING NATURE, SO AS IN
FACT TO AMOUNT TO A MODIFICATION OF THE DUTIES SPECIFIED IN THE PERMIT,
THE DIRECTOR WOULD BE REQUIRED TO MODITY THE PERMIT.
EPA BELIEVES THIS "SHIELD" AFFORDS RCRA AND UIC PERMITTEES A
SIGNIFICANT DEGREE OF ADDED CERTAINTY. IT NOW PLACES THE BURDEN ON
PERMIT WRITERS RATHER THAN PERMITTEES TO SEARCH THROUGH THE APPLICABLE
REGULATIONS AND CORRECTLY APPLY THEM TO THE PERMITTEE THROUGH ITS
PERMIT. THIS MEANS THAT A PERMITTEE MAY RELY ON ITS EPA-ISSUED PERMIT
DOCUMENT TO KNOW THE EXTENT OF ITS ENFORCEABLE DUTIES UNDER THE
APPROPRIATE ACT, OR ON ITS STATE ISSUED DOCUMENT TO THE EXTENT THE STATE
PROGRAM HAS NOT ADOPTED A MORE STRINGENT APPROACH TO ENFORCEMENT.
THIS NEW "SHIELD" PROVISION DOES NOT ALTER THE FACT THAT A PERMIT MAY
BE MODIFIED, REVOKED AND REISSUED, OR TERMINATED DURING ITS TERM FOR
APPROPRIATE CAUSES (SEE PREAMBLE TO SECTIONS 122.15 AND 122.16). MOST
INSTANCES OF MODIFICATION, REVOCATION AND REISSUANCE, OR TERMINATION
WILL BE THE RESULT OF NONCOMPLIANCE WITH A REQUIREMENT OF THE PERMIT,
ALTHOUGH SOME CAUSES DO NOT REQUIRE NONCOMPLIANCE. HOWEVER, "FAILURE TO
APPLY ANY APPLICABLE REQUIREMENTS" (PROPOSED SECTION 122.9(E)()) IS NOT,
AS IT WAS IN THE PROPOSAL, GROUNDS FOR MODIFYING OR REVOKING AND
REISSUING A FIXED-TERM PERMIT. THUS, IF THE PERMIT WRITER MAKES A
MISTAKE AND DOES NOT INCLUDE A REQUIREMENT OF THE APPROPRIATE ACT IN THE
PERMIT DOCUMENT, THE PERMITTEE WILL NEITHER BE ENFORCED AGAINST NOR HAVE
ITS PERMIT MODIFIED OR REVOKED AND REISSUED AS A RESULT (UNLESS,
PERHAPS, AN ENDANGERMENT TO HUMAN HEALTH OR THE ENVIRONMENT CAN BE
SHOWN; SEE SECTION 122 122.16(A)(3)). IN ADDITION, EPA HAS THE
AUTHORITY IN CERTAIN CIRCUMSTANCES TO "VETO" A STATE-ISSUED RCRA PERMIT.
THIS PROVISION IS DISCUSSED IN THE PREAMBLE TO PART 123, SUBPART B.
THIS CHANGE HAS NECESSITATED A CAREFUL REWRITING AND REORGANIZATION
OF MANY SECTIONS OF THE PROPOSAL. THE PROPOSAL CONTAINED LANGUAGE WHICH
WAS ADDRESSED TO PERMIT WRITERS AS WELL AS PERMITTEES, WITHOUT A
COHERENT ATTEMPT TO DISTINGUISH ONE FROM THE OTHER. BECAUSE THE
REQUIREMENTS FOR PERMITTEES WERE SCATTERED THROUGH THE REGULATIONS, A
CONSCIENTIOUS PERMITTEE MIGHT HAVE FELT OBLIGED TO READ THROUGH ALL OF
THE REGULATIONS IN ORDER TO BE SURE THAT IT WAS AWARE OF ALL OF ITS
DUTIES. SIMILARLY, THERE WAS NO MECHANISM FOR ASSURING THAT THE PERMIT
WRITER WOULD PICK UP ALL OF THE REQUIREMENTS AND PLACE THEM IN THE
PERMIT. THIS IS NO LONGER TRUE. RATHER THAN STATING THAT "THE
PERMITTEE SHALL," THE REGULATIONS NOW IN MANY INSTANCES STATE IN EFFECT
THAT, "THE PERMIT SHALL BE WRITTEN TO REQUIRE THAT THE PERMITTEE SHALL."
LIKEWISE, THE REGULATIONS HAVE BEEN STRUCTURED SO THAT GENERALLY
APPLICABLE PERMIT REQUIREMENTS APPEAR IN ALL PERMITS, AND THAT PERMIT
REQUIREMENTS WHICH VARY FROM PERMIT TO PERMIT CAN BE TRACKED THROUGH THE
REGULATIONS AND APPLIED AS APPROPRIATE; SEE TABLE II AND ACCOMPANYING
PREAMBLE.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 025 OF 225
COSTLE DM ADMINISTRATOR
EPA
113524
REGULATIONS
(2) PROPOSED SECTION 122.7(B) (NOW SECTION 122.13(B)) PROVIDED THAT A
PERMIT DOES NOT "INFRINGE" STATE OR LOCAL LAW OR REGULATIONS OR PREEMPT
ANY DUTY TO OBTAIN STATE OR LOCAL ASSENT REQUIRED BY LAW. EPA RECEIVED
SEVERAL COMMENTS ON THESE PROPOSED PROVISIONS, PARTICULARLY FOR RCRA
FACILITIES. FIRST, EPA HAS REORGANIZED THE SECTION SO THAT NO STATE
PROGRAM WILL BE REQUIRED TO ENSURE NON-PREEMPTION AS A CONDITION OF
PROGRAM APPROVAL BY EPA. IT IS QUITE POSSIBLE FOR A STATE TO DETERMINE
THAT IN ESTABLISHING, FOR EXAMPLE, A HAZARDOUS WASTE PROGRAM TO SATISFY
THE REQUIREMENTS OF THE FEDERAL RESOURCE CONSERVATION AND RECOVERY ACT,
IT IS PREEMPTING ANY LOCAL AUTHORITY TO REGULATE HAZARDOUS WASTE; SEE
ROLLINS ENVIRONMENTAL SERVICES V. IBERVILLE, 13 ERC 1260 (S.CT. LA.,
1979). THE PREEMPTIVE EFFECT OF STATE OPERATION OF ANY OF THE PROGRAMS
IN THESE REGULATIONS IS A MATTER FOR FEDERAL OR STATE LAW WHICH EPA DOES
NOT ADDRESS ONE WAY OR THE OTHER IN THESE REGULATIONS. APPLICANTS AND
PERMITTEES MUST FIND OUT FOR THEMSELVES IF THERE ARE LOCAL LAWS WITH
WHICH THEY MUST COMPLY. SECOND, THE STATEMENT THAT A PERMIT DOES NOT
INFRINGE STATE OR LOCAL LAW OR REGULATIONS REMAINS APPLICABLE TO EPA
PERMITS. EPA DOES NOT INTEND THIS PROVISION TO MEAN THAT NON-PREEMPTION
IS A PRECONDITION OF ISSUING AN EPA PERMIT. EPA'S INTENT IS THAT IT HAS
NOT MADE A DETERMINATION THROUGH THESE REGULATIONS THAT IN ISSUING A
PERMIT IT IS PREEMPTING STATE OR LOCAL REQUIREMENTS.
REVIEW OF PERMITS (PROPOSED SECTION 122.9). IN THE PROPOSAL, THE
PROVISIONS FOR PERMIT "REVIEWS" WERE OF CENTRAL IMPORTANCE, AND RECEIVED
AN APPROPRIATELY LARGE VOLUME OF COMMENT, BECAUSE THEY WERE A
COUNTERPART TO THE PROPOSED LIFETIME DURATION OF RCRA AND UIC PERMITS.
BECAUSE OF THE FIXED-TERM APPROACH TO PERMIT DURATION ADOPTED IN THESE
FINAL REGULATIONS (SEE FINAL SECTION 122.9 AND ACCOMPANYING PREAMBLE),
PERMIT REVIEWS ARE NO LONGER A CENTRAL FEATURE OF PART 122. ALTHOUGH
THE MANDATORY FIVE-YEAR REVIEW FOR CLASS II AND III UIC PERMITS
(PROPOSED SECTION 122.9 (A)) REMAINS IN SECTION 122.9(C) (DURATION OF
UIC PERMITS), THE OTHER PROVISIONS CONCERNING REVIEW THAT APPEARED IN
PROPOSED SECTIONS 122.9(A), (B) AND (C) EITHER HAVE BEEN ELIMINATED OR
ARE ADEQUATELY COVERED BY PART 124.
FIRST (PROPOSED SECTION 122.9(A)), THE OTHER FIVE-YEAR REVIEWS HAVE
BEEN ELIMINATED BECAUSE ALL PERMITS OTHER THAN CERTAIN UIC PERMITS ARE
NOW FOR A FIXED TERM AND THEREFORE WILL BE REVIEWED AUTOMATICALLY AS A
PART OF PERMIT REISSUANCE.
SECOND (PROPOSED SECTION 122.9(B)), EPA HAS ELIMINATED MANDATORY
"CROSS-REVIEWS" FOR FACILITIES WITH MORE THAN ONE PERMIT AND THE
CORRESPONDING PROVISION (PROPOSED SECION 122.9(E)(5)) THAT WOULD HAVE
MADE MODIFICATION OF ONE PERMIT GROUNDS IN ITSELF FOR MODIFYING ANY
OTHER PERMIT FOR THE FACILITY. THE "CROSS-REVIEW" PROVISION IS NO
LONGER NECESSARY BECAUSE OF THE FIXED-TERM PERMIT APPROACH, AND THE
MODIFICATION PROVISION HAS BEEN ELIMINATED BOTH AS PART OF EPA'S ATTEMPT
TO NARROW THE CAUSES FOR MODIFICATION OF A PERMIT AND BECAUSE OF
COMMENTERS' OBJECTIONS THAT IT INVOLVED "BOOTSTRAPPING" THE PROGRAMS
ONTO EACHOTHER. SECTION 124.10 (PUBLIC NOTICE) PROVIDES, AS IT DID IN
THE PROPOSAL, THAT MANDATORY NOTICE OF ANY PERMIT ACTION WILL BE SENT TO
ANY AGENCY ADMINISTERING OTHER PERMITS UNDER THESE R-GULATIONS FOR THE
SAME FACILITY. THESE AGENCIES WOULD THEN BE FREE TO TAKE WHATEVER
PERMIT ACTIONS WOULD BE AUTHORIZED, IF ANY, UNDER THE STATUES AND
REGULATIONS GOVERNING THE PROGRAMS THEY ADMINISTER.
THIRD (FIRST CLAUSE OF PROPOSED SECTION 122.9(C)), THE PROVISION THAT
THE DIRECTOR MAY REVIEW A PERMIT AT ANY TIME HAS BEEN= ELIMINATED. THE
DIRECTOR ALWAYS HAS AUTHORITY TO REVIEW A PERMIT, AND THE STATEMENT
TENDED MERELY TO CREATE CONFUSION AS TO WHAT EPA MEANT BY "REVIEW."
FOURTH (SECOND CLAUSE OF PROPOSED SECTION 122.9(C)), IT REMAINS TRUE
THAT THE DIRECTOR MUST REVIEW A PERMIT WHEN PRESENTED WITH INFORMATION
WHICH, IF VALID, WOULD CONSTITUTE CAUSE FOR A MODIFICATION. HOWEVER,
THE CONCEPT IS NOW TAKEN CARE OF IN FINAL SECTION 124.5, WHICH EPA HAS
BROADENED TO STATE THAT ANY INTERESTED PERSON, AND NOT JUST THE
PERMITTEE, MAY REQUEST A MODIFICATION, REVOCATION AND REISSUANCE, OR
TERMINATION OF A PERMIT. SECTION 124.5(B) REQUIRES THAT DENIAL OF ANY
SUCH REQUEST MST BE CONVEYED TO THE REQUESTER IN WRITING; THIS ENSURES
THAT THE "REVIEW" "SHALL" TAKE PLACE.
COMMENTERS EXPRESSED A GREAT DEAL OF CONFUSION AND ANXIETY OVER WHAT
CONSTITUTES A "REVIEW." WE HAVE NOT PROVIDED A DEFINITION OF REVIEW
BECAUSE EPA BELIEVES THAT THE DIRECTOR SHOULD DETERMINE THE APPROPRIATE
LEVEL OF REVIEW. IN CONDUCTING A REVIEW, THE DIRECTOR MAY OBTAIN
INFORMATION IN ANY OF THE WAYS WHICH ARE AUTHOFIZED UNDER THE
APPROPRIATE ACTS ANYWAY, SUCH AS REVIEW OF THE FILES, INSPECTION, OR
INFORMATION REQUESTS. THUS, THE PROPOSED REVIEW PROVISIONS ADDED
NOTHING TO STATUTORY INFORMATION-GATHERING AUTHORITY. "REVIEW"
DESCRIBES WHAT THE DIRECTOR ALWAYS COULD HAVE DONE AT ANY TIME ANYWAY.
FOR THIS REASON, EPA HAS ALSO ELIMINATED THE LIST OF SOURCES OF
INFORMATION UPON WHICH THE DIRECTOR COULD BASE REVIEW (PROPOSED SECTION
122.9(D)) AS MISLEADING AND LESS ACCURATE THAN RELYING ON THE FULL RANGE
OF STATUTORY AUTHORITIES. REVIEW OF A PERMIT DOES NOT MEAN THAT THE
PERMIT IS AUTOMATICALLY "REOPENED," BUT ONLY THAT A SEARCH IS CONDUCTED
TO DETERMINE WHETHER OR NOT IT SHOULD BE.
MANY COMMENTERS REQUESTED THAT INFORMATION SUBMITTED BY THE PUBLIC BE
SUBJECTED TO SOME EVIDENTIARY REQUIREMENT BEFORE REVIEW WOULD BE
TRIGGERED. ALTHOUGH, AS DISCUSSED ABOVE, REVIEW UPON RECEIPT OF A VALID
PUBLIC REQUEST IS MANDATORY, THE DIRECTOR IS FREE TO FASHION THE SCOPE
HIS OR HER REVIEW ACCORDING TO THE MERITS OF THE INFORMATION SUBMITTED.
ONLY IF CAUSE IS FOUND ARE PERMITS OPENED, AT WHICH TIME THE DRAFT
PERMIT AND HEARING PROVISIONS OF PART 124 GIVE PERMITTEES AN OPPORTUNITY
TO PROVIDE THEIR VIEWS ON ANY CONTEMPLATED ACTION.
THE PROVISION ON TRANSFERS APPEARED IN THE PROPOSAL IN SECTION
122.8(E). THE PROPOSAL STATED THAT PERMITS COULD BE TRANSFERRED ONLY IF
WRITTEN NOTICE WERE GIVEN TO THE DIRECTOR CONTAINING A SPECIFIC DATE FOR
TRANSFER OF PERMIT RESPONSIBILITY AND IF THE DIRECTOR FAILED TO OBJECT
WITHIN 30 DAYS TO THE TRANSFER. TRANSFER OF A FACILITY WAS A CAUSE FOR
MODIFICATION OR TERMINATION OF THE PERMIT (PROPOSED SECTIONS 122.9(E)(4)
AND 122.10(B)(4)). MANY COMMENTERS OBJECTED THAT THE GROUNDS FOR
DISAPPROVING A TRANSFER AND REQUIRING A MODIFIED PERMIT OR TERMINATING A
PERMIT UNDER ALL CIRCUMSTANCES OUGHT TO BE SUFFICIENT, AND THAT IF THERE
ARE ADDITIONAL GROUNDS THAT ARISE BECAUSE OF PERMIT TRANSFERS THEY OUGHT
TO BE SPELLED OUT AND INCLUDED WITH THE OTHERS.
THE IMPLICIT ASSUMPTION OF MANY OF THESE COMMENTERS IS THAT A PERMIT
IS A "VESTED" RIGHT WHICH SHOULD BE FREELY AND AUTOMATICALLY
TRANSFERABLE ALONG WITH OWNERSHIP OF THE REGULATED FACILITY. EPA
DISAGREES WITH THIS NOTION. IT IS EPA'S POSITION AS A MATTER OF LAW
THAT THE PRIVILEGES ASSOCIATED WITH A PERMIT ATTACH ONLY TO THE PERSON
AUTHORIZED TO CONDUCT PERMITTED ACTIVITIES AND ARE NOT INERENTLY
ASSIGNABLE. MANY STATES PRECLUDE ANY PERMIT TRANSFERS AND REQUIRE THE
NEW FACILITY OWNER TO APPLY FOR AND OBTAIN A NEW PERMIT IN ALL
INSTANCES.
AS A PRACTICAL MATTER, PERMITS IN MANY INSTANCES CONTAIN REQUIREMENTS
WHICH ARE PERSONAL TO THE PERMITTEE THROUGH THE EXPLICIT CONDITIONS
REQUIRED TO BE CONTAINED IN THE PERMIT. THIS IS MOST SIGNIFICANTLY TRUE
FOR RCRA FACILITIES AND UIC WELLS INJECTING HAZARDOUS WASTES.
CONSEQUENTLY, FOR THESE FACILITIES IN EVERY CASE, AND FOR OTHER UIC
FACILITIES AND NPDES FACILITIES AS APPROPRIATE, A MODIFICATION OF THE
PERMIT IS NECESSARY TO REFLECT THE NEW OWNERSHIP OR OPERATIONAL CONTROL
OF THE FACILITY, ALTHOUGH EPA HAS ATTEMPTED TO ACHIEVE THE LEAST
POSSIBLE BURDEN ON PROPERTY TRANSACTIONS CONSISTENT WITH ADEQUATE
TRANSFER OF PERMIT RESPONSIBILITIES.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 026 OF 225
COSTLE DM ADMINISTRATOR
EPA
113525
REGULATIONS
FIRST, EPA HAS RETAINED THE ESSENTIAL FEATURES OF THE PROPOSAL FOR
NPDES FACILITIES AND UIC WELLS NOT INJECTING HAZARDOUS WASTE. PERMITS
FOR THESE FACILITIES MAY BE TRANSFERRED AUTOMATICALLY, WITHOUT REQUIRING
ANY AFFIRMATIVE ACT BY THE DIRECTOR, BUT ONLY IF A WRITTEN AGREEMENT FOR
TRANSFER OF PERMIT RESPONSIBILITIES IS SENT TO THE DIRECTOR. THE
AGREEMENT NO LONGER REQUIRES SPECIFIC PROVISIONS AS TO LIABILITY FOR
EVENTS OCCURRING BEFORE AND AFTER TRANSFER, BUT ONLY AN AGREEMENT AS TO
LIABILITY BETWEEN THE PARTIES. FOR UIC FACILITIES, THE NOTICE TO THE
DIRECTOR MUST ALSO DEMONSTRATE THAT THE REQUIREMENTS FOR FINANCIAL
RESPONSIBILITY WILL BE MET BY THE NEW PERMITTEE. FINALLY, THE DIRECTOR
MUST HAVE THE OPPORTUNITY TO REQUIRE THAT THE PERMIT BE MODIFIED TO
REFLECT THE CHANGE IN OWNERSHIP OR OPERATION. IN MANY CASES THE
DIRECTOR MAY FEEL THAT IT IS DESIRABLE TO REQUIRE THE PROSPECTIVE NEW
PERMITTEE TO SUBMIT A PERMIT APPLICATION; SEE PREAMBLE TO SECTION
122.15(B).
FOR PERMITS THAT ARE AUTOMATICALLY TRANSFERRED UNDER THIS PROVISION,
THE TRANSFER-BASED CAUSE FOR MODIFICATION OR RENOVATION AND REISSUANCE
(SECTION 122.15(B)(2)) SURVIVES THE TRANSFER, SO THAT THE DIRECTOR CAN
LATER MODIFY THE PERMIT TO REFLECT THE NEW REALITIES OF THE OPERATION
WITHOUT HOLDING UP THE TRANSFER. HOWEVER, AFTER AN AUTOMATIC TRANSFER
IS EFFECTIVE THE PERMIT WILL NOT BE REOPENED TO REVOKE AND REISSUE THE
PERMIT UNLESS THE PERMITTEE REQUESTS OR AGREES. OTHERWISE, THE NEW
PERMITTEE WOULD BE SUBJECT TO HAVING ITS ENTIRE PERMIT REWRITTEN AT ANY
TIME REGARDLESS OF ITS RELEVANCE TO THE CHANGE BROUGHT ABOUT BY THE
TRANSFER. THIS IS CONTRARY TO THE CERTAINTY WHICH THEWE REGULATIONS
ATTEMPT TO GIVE PERMITTEES DURING THEIR FIXED-TERM PERMITS. OF COURSE,
THE TRANSFERRED PERMIT MAY ALSO ALWAYS BE TERMINATED FOR CAUSE, SUCH AS
VIOLATION OF THE FINANCIAL RESPONSIBILITY REQUIREMENTS.
SECOND, FOR RCRA FACILITIES AND UIC WELLS INJECTING HAZAROUS WASTES,
EPA HAS DETERMINED THAT IN ALL CASES IT WILL BE NECESSARY TO MODIFY THE
PERMITS UPON TRANSFER OF OWNERSHIP OR OPERATIONAL CONTROL OF A PERMITTED
FACILITY OR ACTIVITY. THIS PROVISION IS ALSO APPLICABLE TO 404 PERMITS.
THIS IS NECESSARY BECAUSE THESE PERMITS, UNLIKE NPDES PERMITS OR
CERTAIN UIC PERMITS (OTHER THAN THE PROVISIONS FOR FINANCIAL
RESPONSIBILITY), CONTAIN CONDITIONS WHICH ARE PERSONAL TO THE PERMITTEE
AND WHICH NECESSARILY MUST CHANGE WHEN THE PERMITTEE CHANGES. THESE
INCLUDE SUCH CONDITIONS OF THE PERMIT AS THE CLOSURE AND POST-CLOSURE
PLANS, THE CONTINGENCY PLAN, AND PROVISIONS FOR FINANCIAL
RESPONSIBILITY. IN ADDITION, BECAUSE SOME OF THESE CONDITIONS ARE
INCORPORATED IN THE PERMIT ON THE BASIS OF INFORMATION WHICH IS
SUBMITTED AS PART OF THE PERMIT APPLICATION, IN MOST OF THESE TRANSFERS
A NEW PERMIT APPLICATION WILL BE NECESSARY AS WELL. A NEW APPLICATION
WILL ALWAYS BE REQUIRED WHEN THE PERMIT IS REVOKED AND REISSUED. H
OWEVER, THERE MAY BE SOME INSTANCES, SUCH AS A CORPORATE-SUBSIDIARY
TRANSFER, WHERE THE MODIFICATION WOULD REQUIRE NO SUBSTANTIVE CHANGES IN
PERMIT CONDITIONS BUT MERELY AN UPDATING TO REFLECT THE IDENTIFY OF THE
NEW OWNER OR OPERATOR. IN THESE CASES, THE TRANSFER COULD BE PROCESSED
AS A MINOR MODIFICATION UNDER SECTION 122.17(D) IF THE DIRECTOR RECEIVES
AN AGREEMENT FOR TRANSFER OF PERMIT RESPONSIBILITIES. EPA BELIEVES THAT
SUCH AN AGREEMENT IS NECESSARY EVEN IN THESE SITUATIONS IN ORDER TO
ASSURE ADEQUATE CONTINUITY OF PERMIT RESPONSIBILITIES.
THIS PROVISION DOES NOT COVER TRANSFERS OF FACILITIES UNDER RCRA
INTERIM STATUS. PROVISIONS FOR SUCH TRANSFERS MAY BE FOUND IN SECTION
122.23.
BECAUSE PERMITTEES NEED TO KNOW WHAT PROVISIONS APPLY TO PERMIT
TRANSFERS, FINAL SECTION 122.7(L)(3) NOW STATES THAT "THIS PERMIT IS NOT
TRANSFERABLE TO ANY PERSON EXCEPT AFTER NOTICE TO THE DIRECTOR." THE
DIRECTOR SHALL THEN PROCEED UNDER THE PROVISIONS OF SECTION 122.14.
UNDER THIS SCHEME, TRANSFER IN ITSELF WILL NO LONGER BE A CAUSE FOR
TERMINATION OF A PERMIT. RATHER, THE PERMIT WILL EITHER BE
AUTOMATICALLY TRANSFERRED; TRANSFERRED AFTER A REQUIRED MODIFICATION OR
REVOCATION AND REISSUANCE; OR THE PERMIT WILL NOT BE TRANSFERRED BUT
WILL REMAIN WITH THE PRIOR OWNER OR OPERATOR OF THE FACILITY, AND THE
NEW OWNER OR OPERATOR OF THE FACILITY WILL BE SUBJECT TO ENFORCEMENT FOR
OPERATING WITHOUT A PERMIT.
EPA BELIEVES THAT IN SOME INSTANCES FINAL SECTION 122.14 MAY BE LESS
BURDENSOME THAN WOULD HAVE BEEN POSSIBLE IN THE PROPOSAL. FOR EXAMPLE,
IN THE PROPOSAL AN AGREEMENT FOR TRANSFER OF PERMIT RESPONSIBILITIES WAS
NECESSARY IN EVERY INSTANCE OF A TRANSFER OF A RCRA PERMIT. IN THE
FINAL VERSION, THIS IS NOT NECESSARY UNLESS THE TRANSFER IS TO BE
HANDLED AS A MINOR MODIFICATION. ALSO, IN THE PROPOSED PROVISION FOR
AUTOMATIC TRANSFERS, A NEW APPLICATION WAS REQUIRED WHENEVER THE
DIRECTOR OBJECTED TO THE TRANSFER. UNDER THESE FINAL REGULATIONS, A
PERMIT MAY BE MODIFIED WITHOUT REQUIRING A NEW APPLICATION.
EPA HAS REWRITTEN THE PERMIT MODIFICATION SECTION IN TWO WAYS AS PART
OF THE EFFORT (SEE ALSO SECTIONS 122.9 AND 122.13 AND ACCOMPANYING
PREAMBLE) TO PROVIDE GREATER CERTAINTY TO PERMITTEES DURING THE PERIOD
WHEN THEY HOLD PERMITS AND THEREBY MAKE IT EASIER TO MAKE BUSINESS
DECISIONS AND OBTAIN FINANCING. FIRST, EPA HAS NARROWED THE
CIRCUMSTANCES UNDER WHICH A PERMIT MAY BE MODIFIED DURING ITS FIXED
TERM. SECOND, EPA HAS NARROWED THE SCOPE OF THE CHANGES THAT CAN BE
MADE WHEN A PERMIT OF FIXED BUT NOT LIFETIME DURATION IS REOPENED DURING
ITS TERM.
(1) THE CAUSES FOR MODIFICATION HAVE BEEN NARROWED. NORMALLY, A
PERMIT WILL NOT BE MODIFIED DURING ITS TERM IF THE FACILITY IS IN
COMPLIANCE WITH THE CONDITIONS OF THE PERMIT. THE LIST OF CAUSES FOR
MODIFYING A PERMIT IS NARROW; AND ABSENT CAUSE FROM THIS LIST, THE
PERMIT CANNOT BE MODIFIED. (HOWEVER, STATE PROGRAMS MAY ALWAYS JBE MORE
STRINGENT THAN THESE REQUIREMENTS AND AN APPROVED STATE PROGRAM COULD
PROVIDE ADDITIONAL CAUSES). IN ADDITION CERTAIN "MINOR MODIFICATIONS
(SECTION 122.17) CAN BE MADE, WITH THE CONSENT OF THE PERMITTEE, ABSENT
CAUSE FROM THE LIST IN SECTION 122.15.
FIRST (SEE SECTION 122.15(A)(1), PROPOSED SECTION 122.9(E)(1)), A
PERMITTED FACILITY MAY CHANGE ITS OPERATIONS IN WAYS THAT WERE NOT
CONTEMPLATED IN THE ORIGINAL PERMIT BUT WHICH REQUIRE REGULATION. THIS
IS ONE BUT WHICH REQUIRE REGULATION. THIS IS ONE INSTANCE WHEN
COMPLIANCE WITH A PERMIT SHOULD NOT INSULATE THE PERMIT FROM
MODIFICATION. WHILE IN MANY CASES A CHANGE IN OPERATIONS WILL VIOLATE
THE PERMIT (GIVING RISE TO CAUSE FOR MODIFICATION UNDER SECTION
122.15(B)(1)), IN OTHER CASES ACTIVITIES NOT LIMITED IN THE PERMIT WILL
ARISE AFTERHE PERMIT WAS ISSUED. IF PERMITS COULD NOT BE MODIFIED FOR
USCH REASONS THEN PERMITS WOULD HAVE TO BE WRITTEN TO PROHIBIT ALL
ACTIVITIES NOT SPECIFICALLY LIMITED IN THE PERMIT. WITH SUCH A
REQUIREMENT PERMITTEES WOULD NEVER BE SURE WHAT THE PERMITTEES WOULD
NEVER BE SURE WHAT THE SCOPE OF PERMISSIBLE ACTIVITIES IS UNDER THEIR
PERMITS. (STATE 404 PERMITS, HOWEVER, AUTHORIZED ONLY A SPECIFIC
ACTIVITY FOR WHAT IS NORMALLY A SHORT PERIOD OF TIME AND ACTIVITIES NOT
AUTHORIZED IN THE PERMIT ARE PROHIBITED; SEE SECTION 122.15 (A)(5)(VII)
AND (IX). PERMITTEES HAVE A DUTY TO REPORT ALL CHANGES IN THE PHYSICAL
FACILITY, AND ALL OTHER CHANGES THAT MAY RESULT IN NONCOMPLIANCE, UNDER
SECTION 122.7(1).
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 027 OF 225
COSTLE DM ADMINISTRATOR
EPA
113526
REGULATIONS
SECOND (SEE SECTION 122.15(A)(2), PROPOSED SECTION 122.9(E)(2)), THE
DIRECTOR MAY RECEIV NEW INFORMATION WHICH JUSTIFIES APPLYING DIFFERENT
FROM THOSE IN THE PERMIT. HOWEVER, EXCEPT FOR CLASS II AND III UIC
WELLS, THIS CAUSE IS LIMITED BY REQUIRING THAT THE INFORMATION MUST NOT
HAVE BEEN AVAILABLE AT THE TIME OF PERMIT ISSUANCE. OTHERWISE, THIS
CASUE WOULD ALLOW THE PERMIT WRITER TO MODIFY A PERMIT BECAUSE A MISTAKE
WAS MADE AT THE TIME OF ISSUANCE BY FAILING TO INCORPORATE APPLICABLE
REQUIREMENTS INTO THE PERMIT. HOWEVER, EXCEPT FOR CLASS II AND III UIC
WELLS, EPA HAS REJECTED THE IDEA THAT MISTAKE SHOULD BR A GROUNDS FOR
MODIFYING A PERMIT (SEE ALSO PREAMBLE TO SECTION 122.13). IN ADDITION,
THE CAUSE IS LIMITED BY REQUIRING THAT THE INFORMATION WOULD HAVE
JUSTIFIED THE INFORMATION WOULD HAVE JUSTIFIED THE APPLICATION OF
DIFFERENT PERMIT CONDITIONS AT THE TIME OF PERMIT ISSUANCE. STATING THE
DATE OF ISSUANCE AS THE REFERENCE POINT IS NECESSARY TO PREVENT USING
THIS CAUSE TO MODIFY A PERMIT BECAUSE OF CHANGED REGULATIONS OR
STANDARDS AGAINST THE WILL OF THE PERMITTEE (PROHIBITED BY SECTION
122.15 (A)(4), DISCUSSED BELOW) BY CITING INFORMATION USING IN SETTING A
NEW STANDARD OR REGULATION. THE NEW INFORMATION MUST HAVE JUSTIFIED THE
APPLICATION OF PERMIT CONDITIONS UNDER THE REGULATORY REQUIREMENTS THAT
WERE APPLICABLE AT THE TIME OF PERMIT ISSUANCE. (HOWEVER, NEW TOXIC
STANDARDS OR PROHIBITIONS UNDER SECTION 307 OF THE CWA AND NEW
CONDITIONS PROVIDED FOR BY A REOPENER CLAUSE ARE AN EXCEPTION FOR NPDES
AND 404).
A SPECIAL CASE OF "NEW INFORMATION" IS INFORMATION THAT CUMULATIVE
EFFECTS OF ACTIVITIES AUTHORIZED BY A NPDES OR 404 GENERAL PERMIT OR UIC
AREA PERMIT ARE UNACCEPTABLE. THUS, FOR EXAMPLE, ANY NEW INFORMATION
INDICATING THAT THE EFFECTS OF A 404 GENERAL PERMIT ARE MORE THAN THE
"MINIMAL ADVERSE ENVIRONMENTAL EFFECTS" ALLOWED BY CWA SECTION 404(E)(1)
WOULD BE GROUNDS FOR MODIFYING THE PERMIT.
(HIRD (SEE SECTION 122.15(A)(3), PROPOSED SECTION 122.12 (A), (B) AND
(C)), PROVISIONS FOR MODIFICATION OF COMPLIANCE SCHEDULES WHICH FORMERLY
APPEARD ONLY IN THE COMPLIANCE SCHEDULE SECTION ARE ALSO CAUSES FOR
MODIFICATION OF A PERMIT DURING ITS TERM AND CONSEQUENTLY ARE LISTED
HERE.
FOURTH (SEE SECTION 122.15(A)(4), PROPOSED SECTION 122.9(E)(E)).
STANDARDS AND REGULATIONS COVERING THE PERMITTED ACTIVITY MAY HAVE
CHANGED SINCE ISSUANCE OF THE PERMIT. AS PART OF ITS ATTEMPT TO PROVIDE
PERMITTES WITH MAXIMUM CERTAINTY AND PROTECTION FRM REGULATORY CHANGE
DURING THE TERMS OF THEIR PERMITS, EPA HAS LIMITED THIS CAUSE TO
INSTANCES WHEN MODIFICATION IS REQUESTED BY THE PERMITTEE. THIS
LIMITATION FORMERLY APPLIED ONLY TO NPDES PERMITS; IT IS NOW APPLICABLE
TO ALL FIXED TERM PERMITS, BECAUSE CLASS II AND CLASS III WELLS UNDER
THE UIC PROGRAM MAY BE ISSUED LIFETIME PERMITS, IT IS NECESSARY TO
RETAIN AUTHORITY TO REOPEN THEM ON THE BASIS OF JREGULATORY CHANGES
DURING THE LIFE OF THE PERMIT; THEREFORE, THE REQUIREMENT FOR A
REQUIREST DOES NOT APPLY TO THESES WELLS.
FIFTH (SEE SECTION 122.15(A)(5), PROPOSED SECTION 122.73), SEVERAL
CAUSES FOR MODIFICATION ARE UNIQUE TO THE NPDES PROGRAM AND FORMERLY
APPEARD IN THE NPDES SUBPART. THEY HAVE BEEN MOVED TO SECTION
122.15(A)(5) AND EXPANDED TO INCLUDE OTHER CAUSES FOR MODIFICATION
SCATTERED THROUGHOUT THE PROPOSAL, TO PROVIDE THE READER WITH A COMPLETE
LIST OF ALL CAUSES FOR MODIFICATION IN ONE PLACE.
TWO NEW OPTIONAL CAUSES FOR MODIFICATION WHICH APPEAR IN THE NPDES
LIST (SECTIONS 122.15(A)(5)(VIII) AND (IX)) CONCERN POLLUTANTS LISTED ON
THE NEW NPDES APPLICATION FORM. THESE CAUSES ARE INCLUDED IN THE FINAL
REGULATIONS AS THE RESULT OF A CHANGE IN THE AGENCY'S APPROACH TOWARD
CONTROLLING POLLUTANTS NOT LIMITED IN PERMITS. UNDER PROPOSED SECTION
122.68(A), WHICH APPEARED IN PART III OF THE JUNE 14, 1979 FEDERAL
REGISTER (44 FR 34393), A PERMITTEE WAS LIMITED TO FIVE TIMES THE LEVELS
OR THE DETECTION LIMIT OF ALL POLLUTANTS REPORTED IN THE APPLICATION
FORM BUT NOT OTHERWISE LIMITED IN THE PERMIT. UNDER THE PROPOSAL, THE
DIRECTOR HAD THE AUTHORITY TO MODIFY THE PERMIT WHEN THESE
"APPLICATION-BASED LIMITS" WERE EXCEEDED, BECAUSE VIOLATION OF A PERMIT
LIMITATION IS GROUNDS FOR PERMIT MODIFICATION. IN RESPONSE TO A LARGE
NUMBER OF COMMENTS, EPA HAD MODIFIED THE PROPOSAL BY USING THE LEVELS OF
POLLUTANTS REPORTED IN THE PERMIT APPLICATION AS THE BASIS FOR A
NOTIFICATION REQUIREMENT ONLY; SEE SECTION 122.61(A). THEREFORE, THE
DIRECTOR CAN NO LONGER MODIFY (OR REVOKE AND REISSUE) THE PERMIT IN THIS
CASE FOR NONCOMPLIANCE. RATHER, THE FIRST NEW OPTIONAL CAUSE FOR
MODIFICATION WAS ESTABLISHED UNDER SECTION 122.15(A)(5)(VIII). THIS
CAUSE ARISES WHENEVER THE LEVEL OF DISCHARGE OF ANY POLLUTANT NOT
LIMITED IN PERMIT EXCEEDS THE LEVEL ATTAINABLE BY THE INSTALLATION OF
BEST AVAILABLE TECHNOLOGY (BAT) FOR TREATMENT OF DISCHARGES. (WHEN THE
LEVEL OF DISCHARGE OF A POLLUTANT EXCEEDS FIVE TIMES THE LEVEL REPORTED
IN THE APPLICATION FORM, BUT DOES NOT EXCEED BAT-LEVEL TREATMENT, THE
DIRECTOR MAY MODIFY THE PERMIT TO ESTABLISH A NEW "NOTIFICATION LEVEL"
UNDER SECTION 122.15(A)(5)(X).) THE DIRECTOR IS NOT REQUIRED TO MODIFY
THE PERMIT UNLESS HE OR SHE DETERMINES THAT MODIFICATION IS NECESSARY TO
CONTROL THE DISCHARGES OF THE POLLUTANT. A MORE DETAILED DISCUSSION OF
THE NEW REGULATIONS AND THE COMMENTS RECEIVED ON THE PROPOSED
APPLICATION-BASED LIMIT APPEARS IN THE PREAMBLE TO THE PUBLIC NOTICE OF
THE CONSOLIDATED APPLICATION FORMS IN TODAY'S FEDERAL REGISTER.
THE SECOND NEW OPTIONAL CAUSE FOR PERMIT MODIFICATION APPEARS IN
SECTION 122.15(A)(5)(IX). IT ALLOWS THE DIRECTOR TO MODIFY THE PERMIT
WHEN THE PERMITTEE BEGINS OR EXPECTS TO BEGIN TO USE OR MANUFACTURE ANY
TOXIC POLLUTANT (LISTED UNDER SECTION 307(A) OF CWA)
SIMILARLY, THE PROPOSAL INCLUDED "OTHER GOOD CAUSE" AS A GROUND FOR
TERMINATION. NOT ONLY WAS THIS CAUSE VAGUE AND OPEN-ENDED, BUT IT
COULD, IN SERVING AS A CAUSE FOR MODIFICATION, PROVIDE A MEANS OF
CIRCUMVENTING THE LIMITATIONS ON OPPORTUNITIES FOR MODIFYING PERMITS
DURING THEIR TERMS WHICH THE CHANGES FROM THE PROPOSAL ARE INTENDED TO
PROVIDE. CONSEQUENTLY, THIS CAUSE HAS BEEN ELIMINATED. IN ADDITION, AS
NOTED IN THE PREAMBLE TO SECTION 122.14, TRANSFER OF OWNERSHIP HAS BEEN
DELTED AS A CAUSE FOR TERMINATION. THE REMAINING CAUSES FOR TERMINATION
(MISREPRESENTATION AND ENDANGERMENT TO HUMAN HEALTH OR THE ENVIRONENT)
HAVE BEEN RETAINED IN THEIR PROPOSED FORM BOTH BECAUSE THEY ARE
SUFFICIENTLY SERIOUS TO WARRANT POSSIBLE PERMIT TERMINATION AND BECAUSE
THEY MAY WARRANT MODIFYING A PERMIT DURING ITS TERM.
SEVERAL COMMENTERS NOTED THE NEED TO CLARIFY THE EFFECT THAT
TERMINATION OF ONE PERMIT HAS ON OTHER RELATED PERMITS. AS SET FORTH IN
FINAL SECTION 124.10 TERMINATION OF ONE PERMIT TRIGGERS A NOTIFICATION
TO ANY AGENCY ADMINISTERING A RELATED PERMIT. THE RELATED PERMIT CAN
THEN BE MODIFIED, REVOKED AND REISSUED, OR TEREMINATED IF CAUSE EXISTS
FOR SUCH ACTION. THE REFERENCE IN PROPOSED PARAGRAPH (A) TO PARTIAL
TERMINATION SEEMED TO IMPLY THE EXISTENCE OF ONE "UMBRELLA" PERMIT.
HOEVER, PERMITS ISSUED UNDER THESE REGULATIONS ARE COMPLETELY SEVERABLE
AND AN ACTION ON ONE HAS NO AUTOMATIC EFFECTS ON OTHERS. THE CONCEPT OF
PARTIAL TERMINATION HAS BEEN DELETED TO AVOID ANY SUCH IMPLICATION.
FINALLY, AS NOTED IN THE DISCUSSION OF FINAL SECTION 122.5, ANY CAUSE
FOR TERMINATION IS ALSO CAUSE FOR DENIAL OF A PERMIT RENEWAL
APPLICATION, AND EPA HAS AMENDED THE SECTION TO REFLECT HIS
DETERMINATION.
PROPOSED SECTION 122.9(G) (NOW SECTION 122.17) CONTAINED SEVERAL
PROVISIONS FOR MINOR PERMIT MODIFICATIONS WHICH COULD BE MADE WITHOUT
THE DRAFT PERMIT AND PUBLIC NOTICE PROVISIONS APPLICABLE TO ALL OTHER
PERMIT MODIFICATIONS. THIS FEATURE HAS BEEN RETAINED, WITH SOME
REORGANIZATION AND REVISIONS. IN ADDITION TO SECTION 122.9(G), THE
PROPOSAL CONTAINED SEVERAL MINOR MODIFICATION PROVISIONS IN THE SUBPARTS
FOR RCRA, UIC AND NPDES. ONE SOURCE OF CONFUSION NOTED BY MANY
COMMENTERS ON THE RCRA PROVISIONS WAS THAT THE TWO SECTIONS APPEARED TO
BE CONTRADICTORY. ALL PROGRAM PROVISIONS HAVE BEEN MOVED TO NEW SECTION
122.17 SO THAT READERS WILL FIND A COMPLETE LIST OF PROVISIONS FOR MINOR
MODIFICATIONS IN ONE PLACE.
IN THE PROPOSAL, A MODIFICATION COULD NOT BE TREATED AS MINOR IF IT
WOULD "RENDER THE PERMIT LESS STRINGENT." WE HAVE DELETED THIS
LIMITATION BECAUSE IT WAS VAGUE AND CONTRADICTED BY OTHER PROVISIONS IN
THE PROPOSAL. RATHER, ANY MINOR MODIFICATION ON THE LIST CAN BE MADE
WITHOUT PUBLIC NOTICE IF BOTH THE DIRECTOR AND THE PERMITTEE AGREE TO
THE MINOR MODIFICATION. IF EITHER DISAGREES, THE PERMIT MODIFICATION IS
NOT MINOR AND MUST BE FOR CAUSE AND WITH PUBLIC NOTICE AS REQUIRED UNDER
SECTION 122.15.
SEVERAL COMMENTERS SUGGESTED THAT THE LIST OF MINOR MODIFICATIONS
SHOULD BE EXAMPLES, RATHER THEN EXCLUSIVE, EPA REJECTS THE NOTION THAT
THE PERMIT MODIFICATIONS WHICH CAN BE PROCESSED WITHOUT ANY NOTICE TO
THE PUBLIC SHOULD BE OPEN-ENDED. EPA CONTINUES TO BELIEVE THAT SCRUTINY
BY THE INTERESTED PUBLIC SHOULD BE AVAILABLE IN MOST INSTANCES, NOT ONLY
TO LESSEN THE POSSIBILITY OF OBJECTIONABLE CHANGES BEING MADE WITHOUT
OBJECTION, BUT TO PRESERVE PUBLIC CONFIDENCE IN THE PERMIT SYSTEM.
SEVERAL OTHER COMMENTERS SUGGESTED THAT MORE FLEXIBILITY SHOULD BE
AVAILABLE TO STATES IN THE SCOPE OF PERMIT ACTIONS WHICH CAN BE
PROCESSED AS "MINOR MODIFICATIONS." THE FINAL MINOR MODIFICATION
PROVISIONS ARE NOT APPLICABLE TO STATES, AS THEY WERE IN THE PROPOSAL.
OF COURSE, AS WITH ANY PART 122 REQUIREMENT, A STATE IS FREE TO HAVE
SUCH PROVISIONS AS A PART OF ITS PROGRAM. HOWEVER, THE ESSENTIAL DUE
PROCESS REQUIREMENTS OF PART 124 THAT WERE APPLICABLE TO STATES IN THE
PROPOSAL ARE STILL APPLICABLE IN THESE FINAL REGULATIONS. THIS MEANS
THAT A STATE PROGRAM MAY PROVIDE FOR MODIFICATIONS TO PERMITS WITHOUT
NOTICE (I.E., AS MINOR MODIFICATIONS) IN ANY SITUATION WHERE TO DO SO
WOULD BE "MORE STRINGENT" (AS DISCUSSED IN THE PREAMBLE TO PART 123)
THAN THE APPLICABLE REQUIREMENTS OF PART 124. FOR MOST OF THE ITEMS IN
SECTIONS 122.17, A STATE PROGRAM COULD PROVIDE FOR MORE FLEXIBLE MINOR
MODIFICATION PROVISIONS (IF CONSISTENT WITH DUE PROCESS) BECAUSE
ELIMINATING NOTICE AND COMMENT PROVISIONS WOULD RESULT IN GREATER STATE
CONTROL.
SOME COMMENTERS SUGGESTED THAT MINOR MODIFICATIONS SHOULD BE
AVAILABLE TO DECREASE PERMIT MONITORING FREQUENCY, RATHER THAN ONLY TO
INCREASE FREQUENCY, AS IN THE PROPOSAL. EPA REJECTS THIS SUGGESTION.
ANY PERMIT MODIFICATION TO REQUIRE LESS FREQUENT MONITORING SHOULD BE
MADE KNOWN TO THE INTERESTED PUBLIC FOR COMMENT.
SEVERAL COMMENTS WERE RECEIVED ON THE MINOR MODIFICATION PROVISION
FOR PERMIT TRANSFERS (PROPOSED SECTION 122.9(G)(4)). EPA HAS RETAINED A
PROVISION FOR MINOR MODIFICATIONS TO REFLECT CHANGES IN OPERATIONAL
CONTROL OR OWNERSHIP OF FACILITIES. TRANSFERS ARE DISCUSSED IN THE
PREAMBLE TO SECTION 122.14.
THE PROPOSED REGULATIONS INCLUDED SPECIAL PROVISIONS ON "MINOR
MODIFICATIONS" OF RCRA PERMITS WHICH WOULD HAVE ALLOWED MODIFICATION OF
A RCRA PERMIT WITHOUT NOTICE AND COMMENT TO CHANGE THE TYPES AND
QUANTITIES OF WASTES TREATED OR TO CHANGE TREATMENT, STORAGE, OR
DISPOSAL METHODS (PROPOSED SECTIONS 122.9(G)(5) AND (6) AND 122.24(D)).
THESE RCRA PROVISIONS HAVE BEEN DELETED FROM THE FINAL REGULATIONS.
THEY WERE SO BROADLY PHASED THAT THEY COULD HAVE BEEN USED TO COMPLETELY
CHANGE THE NATURE OF THE PERMITTED ACTIVITY WITHOUT PUTTING THE
PERMITTING AGENCY AND THE PERMITTEE TO THE DISCIPLINE OF INFORMING THE
PUBLIC AND CONSIDERING ITS VIEWS.
THERE MAY WELL BE CASES WHERE FLEXIBILITY REGARDING THESE MATTERS IS
DESIRBALE. IN THOSE CASES, IT WILL BE PERFECTLY POSSIBLE TO WRITE THE
INITIAL PERMIT SO THAT IT COVERS THE VARIOUS COURSES OF ACTION THAT MAY
BE CONTEMPLATED FOR THE FUTURE. WHERE THAT IS NOT DONE, THE PERMIT CAN
STILL BE MODIFIED WHENEVER THE REQUIREMENTS OF SECTION 122.15 ARE MET.
HOWEVER, FOR THE PRESENT IT WOULD NOT BE RESPONSIBLE FOR EPA TO
SPECIFY CERTAIN CHANGES TO THE SUBSTANCE OF RCRA PERMITS AS "MINOR" ONES
THAT DO NOT REQUIRE NOTICE AND COMMENT. BECAUSE THERE IS NO EXPERIENCE
WITH THE RCRA PERMIT PROGRAM YET, EPA LACKS THE INFORMATION NECESSARY TO
DETERMINE WHICH CHANGES IN METHODS OR HAZARDOUS WASTES WOULD REALLY BE
MINOR AND WHICH WOULD NOT BE MINOR ALTHOUGH THEY MIGHT APPEAR TO BE.
(1) PROPOSED SECTION 122.15 (NOW SECTION 122.18) HAS BEEN COMPLETELY
REORGANIZED TO BRING ALL OF THE PROVISIONS FOR QUARTERLY AND ANNUAL
NONCOMPLIANCE REPORTS TOGETHER IN SUBPART A. MINOR CHANGES HAVE BEEN
MADE TO ACHIEVE THIS REORGANIZATION, BUT IT WAS POSSIBLE ONLY BECAUSE
THE PROPOSED RCRA AND UIC REQUIREMNTS WERE ALREADY MODELED ON THE NPDES
SCHEME AND WERE VIRTUALLY IDENTICAL TO IT. THE 404 NONCOMPLIANCE
REPORTING REQUIREMENTS, BECAUSE OF THE UNIQUE NATURE OF THAT PROGRAM (A
LARGE NUMBER OF PERMITS OF VERY SHORT DURATION, IN MOST CASES ISSUED
WITHOUT MONITORING OR COMPLIANCE SCHEDULE REQUIREMENTS) ARE SOMEWHAT
DIFFERENT AND HAVE BEEN PLACED IN SEPARATE PARAGRAPHS ((B) AND (D)).
IN THE PROPOSAL THERE WAS SOME CONFUSION BETWEEN "PROGRAM REPORTS"
AND NONCOMPLIANCE REPORTS. BECAUSE BOTH REPORTS MUST BE PREPARED BY
PERMITTING AUTHORITIES (I.E., STATE DIRECTORS OR REGIONAL
ADMINISTRATORS) IT MAKES SENSE TO PUT THE PROVISIONS GOVERNING THEM IN
ONE PLACE SO THAT DIRECTORS CAN EASILY DETERMINE WHAT REPORTS TO
PREPARE.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 028 OF 225
COSTLE DM ADMINISTRATOR
EPA
113527
REGULATIONS
THE ONLY EXCEPTIONS ARE THE "PROGRESS REPORTS" REQUIRED OF STATES
WITH INTERIM AUTHORIZATION UNDER RCRA AND OF STATES WHICH HAVE BEEN
"LISTED" BUT NOT APPROVED UNDER UIC (SEE SECTION 123.11). THESE CHANGES
HAVE ELIMINATED A GREAT NUMBER OF CROSS REFERENCES AND HAVE SERVED TO
INCREASE UNIFORMITY AMONG PROGRAMS. THE COVERAGE AND ORGANIZATION OF
THE SECTION IS ILLUSTRATED IN TABLE VI.
TABLE VI. - NONCOMPLIANCE AND PROGRAM REPORTS
TABLE OMITTED
SEVERAL STATES COMMENTED THAT THE NPDES NONCOMPLIANCE REPORTS ARE
BURDENSOME TO PREPARE OR THAT SIMILAR REPORTS WILL BE BURDENSOME FOR THE
OTHER PROGRAMS. ELIMINATING NEEDLESSLY DIFFERING REQUIREMENTS AND
FORMATS CAN ALLEVIATE THIS PROBLEM SOMEWHAT. LIKEWISE, THE NATURAL
RESOURCES DEFENSE COUNCIL COMMENTED ON THE DIFFICULTY IT EXPERIENCED IN
ATTEMPTING TO WORK WITH INFORMATION CONTAINED IN NONCOMPLIANCE REPORTS,
RESULTING IN PART FROM A LACK OF UNIFORMITY AS TO THE KINDS OF
INFORMATION INCLUDED. TO THE EXTENT THAT THIS PROBLEM CAN BE ADDRESSED
IN THESE REGULATIONS, EPA HAS ATTEMPTED TO BE RESPONSIVE SO THAT
CITIZENS' GROUPS AND OTHERS OUTSIDE THE PERMITTING AGENCIES CAN ALSO
FIND NONCOMPLIANCE REPORTS USEFUL.
(2) THE MOST FREQUENT COMMENT RECEIVED ON THIS SECTION WAS THAT EPA
SHOULD PROVIDE A DEFINITION OF MAJOR FACILITY AND MINOR FACILITY. IN
SOME CASES THIS CONCERN STEMMED FROM A MISAPPREHENSION THAT THE
PERMITTEE'S REPORTING BURDEN WOULD DEPEND ON THE CLASSIFICATION. WE
HAVE CHANGED THE HEADING OF THIS SECTION TO EMPHASIZE THAT THE REPORTS
COVERED ARE WRITTEN BY THE PROGRAM DIRECTORS, NOT BY PERMITTEES.
FURTHERMORE, ALTHOUGH CLASSIFICATION AS MAJOR OR MINOR MAY HAVE SOME
EFFECT ON A PERMITTEE IN DETERMINING HOW MUCH SCRUTINY IT RECEIVES IN
NONCOMPLIANCE SUMMARIES, THROUGH "FACT SHEETS" PREPARED UNDER PART 124,
OR THROUGH PROVISIONS FOR PERMIT ADMINISTRATION (FOR EXAMPLE, EPA REVIEW
OF PROPOSED STATE PERMITS), SUCH CLASSIFICATION DOES NOT AFFECT PERMIT
REQUIREMENTS. PERMIT CONDITIONS ARE DETERMINED BY THE PERMIT WRITER
ACCORDING TO THE SAME REGULATORY REQUIREMENTS AND UNDER THE SAME
PROCEDURES REGARDLESS OF WHETHER A FACILITY IS MAJOR OR MINOR.
LIKEWISE, PREPARATION OF FACT SHEETS, EPA REVIEW OF STATE PERMITS, AND
PREPARATION OF QUARTERLY SUMMARIES OF NONCOMPLYING FACILITIES ARE
ACTIONS WHICH EPA HAS THE AUTHORITY TO TAKE WHETHER OR NOT A FACILITY IS
DESIGNATED AS MAJOR. THEY SIMPLY STATE HOW EPA WILL ALLOCATE ITS OWN
EFFORTS IN PROCESSING OR REVIEWING PERMITS.
CONSEQUENTLY, EPA DOES NOT BELIEVE THAT THERE IS ANY LEGAL
REQUIREMENT TO SPECIFY THIS TERM MORE PRECISELY, ALTHOUGH THAT WOULD BE
DESIRABLE AS A MATTER OF POLICY. HOWEVER, IT IS NOT POSSIBLE FOR EPA TO
DETERMINE IN ADVANCE PRECISELY WHICH FACILITIES WILL BE CLASSIFIED AS
MAJOR. FLEXIBILITY IS NEEDED SO THAT THE INFORMATION GATHERED IN
NONCOMPLIANCE REPORTS CAN REFLECT EPA'S CHANGING ENFORCEMENT AND REVIEW
PRIORITIES AND RESOURCES. IT SHOULD BE EMPHASIZED THAT THE USE OF THE
CATEGORIES "MAJOR" AND "MINOR" DOES NOT IMPLY THAT ONE CATEGORY IS
COMPOSED OF FACILITIES WHICH ARE BIGGER OR HAVE GREATER CAPACITY THAN
THOSE IN THE OTHER CATEGORY, BUT ONLY THAT ONE CATEGORY IS DISTINGUISHED
FROM THE OTHER FOR ADMINISTRATIVE PURPOSES.
FOR THESE REASONS, EPA HAS NOT ATTEMPTED TO PRECISELY DEFINE WHICH
FACILITIES WILL BE CLASSIFIED AS MAJOR. INSTEAD, A DEFINITION OF "MAJOR
FACILITY" HAS BEEN ADDED IN SECTION 122.3 WHICH REFERS TO THE DIRECTOR'S
DISCRETION. MAJOR HWM FACILITIES ALSO WILL BE CLASSIFIED THROUGH
GUIDANCE; AND THE DEFINITION OF "MAJOR HWM FACILITY" IN PROPOSED
SECTION 122.3, WHICH RECEIVED A GREAT DEAL OF CRITICISM, HAS THEREFORE
BEEN DELETED.
(3) EPA REJECTS SEVERAL SUGGESTIONS FROM INDUSTRY THAT QUARTERLY
REPORTS BE ELIMINATED BECAUSE NONCOMPLIANCE IS ALREADY REPORTED BY
PERMITTEES IN A NUMBER OF WAYS. WHILE IT IS TRUE THAT PERMITTEES ARE
REQUIRED TO REPORT NONCOMPLIANCE (SECTION 122.7), THIS HAS NO BEARING ON
THE NEED FOR OVERSIGHT AGENCIES AND THE PUBLIC TO HAVE SUMMARIES OF
INFORMATION ON HOW THE PROGRAMS ARE BEING ENFORCED.
(4) THREE BASIC INFORMATIONAL ITEMS FOR QUARTERLY NONCOMPLIANCE
REPORTS WHICH APPEARED IN THE FINAL NPDES REGULATIONS BUT WHICH WERE
INADVERTENLY DROPPED FROM THE PROPOSED CONSOLIDATED REGULATIONS HAVE
BEEN RESTORED FOR ALL PROGRAMS. REPORTS WILL NOT INCLUDE A DESCRIPTION
OF ACTIONS TAKEN TO ENSURE COMPLIANCE, STATUS OF THE NONCOMPLIANCE, AND
ANY DETAILS WHICH MITIGATE OR EXPLAIN THE NONCOMPLIANCE.
(5) THE OPENING PARAGRAPH OF SECTION 122.18 AND SECTION 122.18 (A)(3)
ADD A REQUIREMENT FOR A QUARTERLY REPORT CONCERNING NONCOMPLIANCE BY
RCRA HAZARDOUS WASTE GENERATORS AND TRANSPORTERS AND ALL RCRA FACILITIES
HAVING INTERIM STATUS. WHILE THE PROPOSED REGULATIONS DEALT ONLY WITH
PERMITTEES, EPA REALIZED IT NEEDS SIMILAR INFORMATION ON GENERATORS,
TRANSPORTERS, AND INTERIM STATUS FACILITIES, AND THEREFORE HAS ADDED THE
REPORTING REQUIREMENT. THE INFORMATION TO BE PROVIDED IN THE REPORT
WILL ADDRESS THE KINDS AND NUMBERS OF COMPLIANCE MONITORING AND
ENFORCEMENT ACTIVITIES THE DIRECTOR HAS UNDERTAKEN DURING THE REPORTING
PERIOD AND THE RESULTS OF SUCH ACTIVITIES.
(6) THE REPORTING YEAR IN FINAL SECTION 122.18(E)(2) HAS BEEN CHANGED
FROM THE FISCAL YEAR AS IT APPEARED IN THE PROPOSAL FOR NPDES (SECTION
122.72(F)) TO THE CALENDAR YEAR FOR ALL PROGRAMS. EPA MADE THIS CHANGE
TO COINCIDE WITH BUSINESS RECORDKEEPING PRACTICES AND TO COORDINATE
REPORTING SCHEDULES WITH THE REQUIREMENTS FOR GENERATORS AND
TRANSPORTERS UNDER THE RCRA PROGRAM AS SET FORTH IN 40 CFR PARTS 262 AND
263.
PARAGRAPH (A) OF SECTION 122.19 (PROPOSED SECTION 122.16) STATES THAT
INFORMATION CLAIMED AS CONFIDENTAIL WILL BE TREATED ACCORDING TO THE
EPA'S RULES CONTAINED IN 40 CFR PART 2 (AS AMENDED SEPT. 8, 1978; 43 FR
3999). COMMENTERS RAISED SEVERAL QUESTIONS CONCERNING SECTION 2.208 OF
THOSE REGULATIONS. SECTION 2.208 SETS FORTH THE SUBSTANTIVE CRITERIA
FOR USE IN BUSINESS CONFIDENTIALITY DETERMINATIONS.
FIRST, COMMENTERS SUGGESTED THAT IF UNDER SECTION 2.208(D) EPA
DETERMINES THAT A STATUTE SPECIFICALLY REQUIRES DISCLOSURE OF
INFORMATION CLAIMED AS CONFIDENTIAL, THE SUBMITTER SHOULD BE GIVEN
NOTICE. EPA AGREES WITH THIS COMMENT; HOWEVER, NO CHANGE IN THE
REGULATIONS IS NECESSARY. NOTICE IS ALREADY PROVIDED TO THE SUBMITTER
UNDER SECTION 2.205(F).
SECOND, COMMENTERS ARGUED THAT SECTION 2.208(E) SHOULD BE AMENDED TO
SPECIFICALLY PROHIBIT RELEASING INFORMATION WHICH WOULD VIOLATE 18
U.S.C. SECTION 1905. THE COMMENTERS ARGUED THAT 18 U.S.C. SECTION 1905
IS INCORPORATED IN THE THIRD EXEMPTION TO THE FREEDOM OF INFORMATION ACT
(FOIA), 5 U.S.C. SECTION 522 (B)(3). EPA DOES NOT AGREE THAT 18 U.S.C.
SECTION 1905 IS INCORPORATED IN THE THIRD EXEMPTION TO THE FOIA.
RATHER, EPA BELIEVES THAT 18 U.S.C. SECTION 1905 LIMITS THE AGENCY'S
DISCRETION TO DISCLOSE INFORMATION. EPA RECOGNIZES THIS IN ITS
DEFINITION OF "REASONS OF BUSINESS CONFIDENTIALITY" IN 40 CFR SECTION
2.201(E). AS A MATTER OF POLICY, EPA DOES NOT DISCLOSE INFORMATION
COVERED BY 5 U.S.C. SECTION 552(B)(4) (SEE 40 CFR SECTION 2.199). EPA
INTERPRETS 18 U.S.C. SECTION 1905 TO BE WITHIN THE SCOPE OF 5 U.S.C.
SECTION 522(B)(4).
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 029 OF 225
COSTLE DM ADMINISTRATOR
EPA
113528
REGULATIONS
CONSEQUENTLY, INFORMATION WITHIN 18 U.S.C. SECTION 1905 WOULD NOT BE
DISCLOSED. THEREFORE, AS A PRACTICAL MATTER, THE EXISTING REGULATIONS
ADEQUATELY ADDRESS THIS COMMENT.
PARAGRAPH (B) OF SECTION 122.18 LISTS INOFRMATION SPECIFICALLY
REQUIRED BY STATUTE TO BE DISCLOSED EVEN IF THE INFORMATION WOULD
OTHERWISE BE EXEMPT FROM DISCLOSURE UNDER THE FOIA. SEVERAL COMMENTERS
ARGUED THAT THE PROPOSED SECTION REQUIRED DISCLOSING CATEGORIES OF
INFORMATION NOT SPECIFICALLY REQUIRED TO BE DISCLOSED. THE INFORMATION
ENTITLED TO CONFIDENTIAL TREATMENT VARIES UNDER EACH OF THE STATUTES
COVERED BY THESE CONSOLIDATED REGULATIONS. GENERALLY, INFORMATION
CONCERNING TRADE SECRETS OR SECRET PROCESSES IS NOT TO BE DISCLOSED.
HOWEVER, UNDER SECTION 402 OF THE CLEAN WATER ACT, NPDES PERMITS AND
PERMIT APPLICATIONS MUST BE AVAILABLE TO THE PUBLIC. SECTION 308 OF THE
CLEAN WATER ACT PROVIDES THAT EFFLUENT DATA RELATED TO NPDES AND 404
PERMITS ALSO ARE NOT ENTITLED TO CONFIDENTIAL TREATMENT. SECTION
1445(D)(2) OF THE SAFE DRINKING WATER ACT PROVIDES THAT INFORMATION
RELATED TO UIC PERMITS WHICH DEALS WITH THE LEVEL OF CONTAMINANTS IN
DRINKING WATER MUST BE DISCLOSED. PARAGRAPH (B) OF SECTION 122.18 HAS
BEEN REWRITTEN TO RECOGNIZE THESE SPECIFIC STATUTORY DIRECTIVES. EPA
HAS DELETED THE PROVISION WHICH WOULD HAVE AUTOMATICALLY REQUIRED
DENYING CLAIMS OF CONFIDENTIALITY FOR INFORMATION CONTAINED IN ALL DRAFT
PERMITS; STATEMENTS OF BASIS; FACT SHEETS; COMMENTS; AND IN THE CASE
OF ALL PERMITS OTHER THAN NPDES PERMITS, PERMIT APPLICATIONS AND
PERMITS.
DATA WHICH ARE NOT SPECIFICALLY LISTED IN PARAGRAPH (B) WILL BE
DISCLOSED TO THE PUBLIC UNDER THE PROCEDURES DISCUSSED IN SECTION
122.18(A). IF NO CLAIM OF CONFIDENTIALITY IS ASSERTED AT THE TIME OF
SUBMISSION, EPA MAY MAKE THE INFORMATION AVAILABLE TO THE PUBLIC WITHOUT
FURTHER NOTICE. IF A CLAIM OF CONFIDENTIALITY IS ASSERTED, THE
INFORMATION WILL BE DISCLOSED ONLY IN ACCORDANCE WITH THE PROCEDURES IN
40 CFR PART 2. THESE PROCEDURES REQUIRE THAT IF EPA PROPOSES TO
DISCLOSE ANY INFORMATION CLAIMED AS CONFIDENTIAL, EPA MUST GIVE PRIOR
NOTICE TO THE SUBMITTER. THEREFORE, IF INFORMATION IS CLAIMED AS
CONFIDENTIAL IN, FOR EXAMPLE, AN APPLICATION FOR A PERMIT UNDER RCRA AND
EPA PROPSOED TO INCLUDE THE INFORMATION IN A FACT SHEET OR DRAFT PERMIT,
EPA WILL GIVE PRIOR NOTICE TO THE SUBMITTER. BECAUSE OF THE IMPORTANCE
OF PUBLIC PARTICIPATION IN THE PERMITTING PROCESS, EPA WILL MAKE EVERY
EFFORT TO PREPARE DRAFT PERMITS AND FACT SHEETS WHICH CONTAIN MEANINGFUL
INFORMATION WHILE STILL PRESERVING A SUBMITTER'S VALID CLAIMS OF
CONFIDENTIALITY, IF ANY. IN THE CASE OF NPDES PERMITS, BECAUSE THE
PERMIT APPLICATION ITSELF CAN NOT BE CLAIMED CONFIDENTIAL, INFORMATION
CONTAINED IN THE APPLICATION MAY BE DISCLOSED AS PART OF A FACT SHEET OR
DRAFT PERMIT, AS APPROPRIATE. MOREOVER MUCH OF THE DATA IN THE PERMIT
APPLICATION IS "EFFLUENT DATA" WITHIN THE MEANING OF 40 CFR SECTION
2.302(A)(2) AND THEREFORE WOULD HAVE TO BE DISCLOSED UNDER SECTION 308
OF CWA.
UNDER EACH OF THE STATUTES COVERED BY THESE CONSOLIDATED REGULATIONS,
EPA MAY DISCLOSE CONFIDENTIAL INFORMATION WHEN RELEVANT IN ANY
PROCEEDING UNDER THE PARTICULAR STATUTE. IF EPA DETERMINES THAT IT IS
NECESSARY TO DISCLOSE OTHERWISE CONFIDENTIAL BUSINESS INFORMATION IN A
PERMIT PROCEEDING, EPA WILL FOLLOW THE PROCEDURES CONTAINED IN 40 CFR
SECTION 2.301(G) (CLEAN AIR ACT) AS INCORPORATED BY REFERENCE IN
SECTIONS 2.302(G) (CWA), 2.304(G) (SDWA), AND 2.305(G) (RCRA).
QUESTIONS CONCERNING THE ENTITLEMENT OF DATA TO CONFIDENTIALITY WILL BE
ADDRESSED TO THE MAXIMUM EXTENT POSSIBLE BEFORE INITIATION OF THE PUBLIC
PARTICIPATION PROCEDURES UNDER PART 124.
IN THE CASE OF NPDES PERMIT APPLICATIONS, PARAGRAPH (C) PROVIDES THAT
NO INFORMATION ON THE NPDES PERMIT APPLICATION FORMS PROVIDED BY THE
DIRECTOR MAY BE CLAIMED CONFIDENTIAL. THIS INCLUDES INFORMATION
SUBMITTED IN THE FORMS THEMSELVES AND IN ANY ATTACHMENTS REQUIRED BY THE
FORMS. UNDER CWA SECTION 402(J) INFORMATION CONTAINED IN NPDES PERMIT
APPLICATIONS IS NOT ENTITLED TO CONFIDENTIAL TREATMENT AND EPA HAS MADE
CLASS DETERMINATION THAT ANY CLAIM OF CONFIDENTIALLY FOR INFORMATION
CONTAINED IN THE NPDES PERMIT APPLICATION FORMS WILL BE DENIED. CLASS
DETERMINATION 1-78 DATED MARCH 22, 1978. BECAUSE BY STATUE ALL THE
INFORMATION CONTAINED IN THE NPDES PERMIT APPLICATION FORMS MUST BE
DISCLOSED TO THE PUBLIC, THERE IS NO REASON TO ALLOW PERSONS TO CLAIM
THE CONTENTS OF THE NPDES APPLICATION FORM AS CONFIDENTIAL. SUCH A
PROVISION WOULD ONLY CAUSE DELAY IN THE AVAILABILITY TO THE PUBLIC OF
THE NPDES PERMIT APPLICATION FORM IN CONTRAVENTION OF THE CLEAR PURPOSE
OF SECTION 402(J) OF THE CWA. SECTION 122.19(C) REFERS TO THE
REQUIREMENT IN SECTIONS 122.3 AND 122.53 THAT THE DIRECTOR PROVIDE
APPLICATION FORMS. SECTION 122.19(C) DOES NOT APPLY TO ANY INFORMATION
SUBMITTED TO EPA WHICH GOES BEYOND THAT REQUIRED UNDER SECTIONS 122.4
AND 122.53 ON THE NPDES APPLICATION FORM; CLAIMS OF CONFIDENTIALITY MAY
BE ASSERTED FOR SUCH INFORMATION AND WILL BE HANDLED UNDER 40 CFR PART
2. CLAIMS OF CONFIDENTIALITY FOR "EFFLUENT DATA" WILL BE DENIED.
IN THE CASE OF RCRA PERIT APPLICATIONS, PARAGRAPH (D) PROVIDES THAT
AT THE TIME AN APPLICATION IS SUBMITTED, THE APPLICANT MUST SUBSTANTIATE
ALL CLAIMS OF CONFIDENTIALITY. THIS IS DONE BY ANSWERING THE SIX
QUESTIONS IN THE INSTRUCTIONS TO THE FORM. IF AN APPLICANT ASSERTS A
CLAIM BUT FAILS TO SUBMIT ANY SUBSTANTIATION IT WILL BE GIVEN AN
OPPORTUNITY TO CORRECT THIS MISTAKE BEFORE THE DIRECTOR RELEASES THE
INFORMATION. EPA OR THE STATE WILL REVIEW CLAIMS OF CONFIDENTIALITY AND
DENCY ANY CLAIM IF IT FINDS THAT DISCLOSURE OF THE RELEVANT MATERIALS
WOULDNOT REVEAL CONFIDENTIAL BUSINESS INFORMATION. UNDER THE RCRA
SECTION 3010 PROCEDURES FOR THE NOTIFICATION OF HAZARDOUS WASTE
ACTIVITY, OWNERS AND OPERATORS WERE ALSO REQUIRED TO SUBSTANTIATE A
CLAIM OF CONFIDENTIALITY AT THE TIME OF SUBMITTING THE INFORMATION. (45
FR 12746, FEBRUARY 26, 1979.)
THERE ARE SEVERAL POLICY AND ADMINISTRATIVE REASONS FOR REQUIRING
SUBSTANTIATION OF A CLAIM OF CONFIDENTIALITY AT THE TIME OF SUBMITTING
THE INFORMATION. THESE INCLUDE THE NEED TO PROVIDE NON-CONFIDENTIAL
INFORMATION ON THE RCRA PERMIT APPLICATIN TO THE PUBLIC, TO PROVIDE THE
DIRECTOR WITH INFORMATION NECESSARY TO MAKE CONFIDENTIALITY
DETERMINATIONS, AND TO INFORM THE SUBMITTER OF THE CRITERIA THAT THE
PERMITTING AUTHORITY WILL USE IN MAKING ITS DETERMINATION.
UNDER RCRA AND FOIA, EPA HAS AN AFFIRMATIVE DUTY TO MAKE
NONCONFIDENTIAL INFORMATION AVAILABLE TO THE PUBLIC. GIVEN THE PUBLIC
INTEREST IN THE RCRA PROGRAM, EPA EXPECTS A GREAT NUMBER OF REQUESTS FOR
INFORMATION ON PERMIT APPLICATIONS UNDER RCRA. MOREOVER, UNDER THE
PERMIT-ISSUANCE PROCEDURES OF PART 124, EPA MUST PREPARE A DRAFT PERMIT
AND A STATEMENT OF BASIS OR FACT SHEET. IF EPA DID NOT REQUIRE
SUBSTANTIATION AT THE TIME A RCRA PERMIT APPLICATION IS SUBMITTED, EPA
WOULD HAVE TO CONTACT THE SUBMITTER TO REQUEST SUBSTANTIATION EVERY TIME
A CLAIM OF CONFIDENTIALITY WAS MADE. THIS WOULD BE A SIGNIFICANT
ADMISTRATIVE BURDEN. UNDER THE FINAL PROCEDURE, HOWEVER, NO ADDITIONAL
BURDEN WILL BE PLACED ON PERMIT APPLICATIONS BECAUSE EPA WOULD HAVE
REQUESTED SUBSTANTIATION OF THE CLAIM IN ANY EVENT. IN FACT, APPLICANTS
WILL NOW HAVE AS MUCH AS SIX MONTHS TO PREPARE THEIR SUBSTANTIATION,
INSTEAD OF THE 15 BUSINESS DAYS OTHERWISE ALLOWED BY THE AGENCY'S
BUSINESS CONFIDENTIALITY REGULATIONS.
THE FINAL APPROACH WILL PROVIDE THE AGENCY AND STATES WITH ALL THE
INFORMATION THEY NEED TO MAKE CONFIDENTIALITY DETERMINATIONS UPON
RECEIPT OF A RCRA PERMIT APPLICATION.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 030 OF 225
COSTLE DM ADMINISTRATOR
EPA
113529
REGULATIONS
/1/ A FACILITY WHICH IS NOT A POTW THAT RECEIVED HAZARDOUS WASTE IN
ANY FORM, WHETHER OR NOT MIXED WITH DOMESTIC SEWAGE IN A SEWER, IS
SUBJECT TO THE FULL RANGE OF RCRA'S REGULATORY REQUIREMENTS. HOWEVER,
IF SUCH A FACILITY RECEIVES ONLY DOMESTIC SEWAGE IT IS OF COURSE EXEMPT
FROM RCRA REQUIREMENTS ALTOGETHER BECAUSE DOMESTIC SEWAGE IS NOT
CLASSIFIED AS A HAZARDOUS WASTE.
THUS, IF THE DIRECTOR WISHES TO MAKE A DETERMINATION OF
CONFIDENTIALITY (EITHER ON ITS OWN OR, FOR EPA, IN RESPONSE TO AN FOIA
REQUEST), THERE WILL BE SIGNIFICANT SAVINGS IN TIME. IN THE CASE OF
PERMIT APPLICATIONS, IT IS ESPECIALLY IMPORTANT TO SETTLE ANY
CONFIDENTIALITY ISSUES EARLY BECAUSE PERMIT PROCEDURES IN PART 124
APPLICABLE BOTH TO STATES AND EPA ANTICIPATE PUBLIC INOVLVEMENT. THAT
PROCESS CAN NOT EFFECTIVELY PROCEED UNTIL CONFIDENTIALITY ISSUES, IF
ANY, ARE SETTLED.
THE FINAL SCHEME ALSO HAS THE ADVANTAGE OF DIRECTING THE SUBMITTER'S
ATTENTION TO THE TYPE OF SUBSTANTIATION THE DIRECTOR MUST HAVE TO GRANT
CONFIDENTIALITY CLAIMS. THIS SHOULD REDUCE UNCERTAINTY FOR THE
SUBMITTER AND RESULT IN DEFENSIBLE RATHER THAN UNWARRANTED CLAIMS. THE
REQUIREMENT TO SUBMIT SUBSTANTIATION AT THE TIME OF FILING THE PERMIT
DOES NOT CHANGE THE SUBSTANTIVE CRITERIA FOR DETERMINING WHETHER
INFORMATION IS ENTITLED TO CONFIDENTIAL TREATMENT.
EPA HAS REORGANIZED THIS SECTION TO PROVIDE AN ORIENTATION TO THE
RCRA SUBPART, SIMILAR TO ORIENTATION SECTIONS ADDED TO THE OTHER
SUBPARTS; TO PROVIDE A CLEARER PICTURE OF THE RELATIONSHIP BETWEEN THE
CONSOLIDATED REGULATIONS AND THE TECHNICAL RCRA REGULATIONS (40 CFR
PARTS 260 TO 266); AND TO PROVIDE A NARRATIVE OF THE BASIC REQUIREMENTS
OF THE RCRA PERMIT PROGRAM. A CHART SHOWING THE CFR NUMBER, DATE OF
FEDERAL REGISTER PUBLICATION, AND SUBJECT MATTER OF EACH MAJOR PORTION
OF THE TECHNICAL RCRA REGULATIONS HAS ALSO BEEN INCLUDED. DETAILED
ELEMENTS OF THE PERMIT PROGRAM ARE SPECIFIED IN SUBSEQUENT SECTIONS.
PROPOSED SECTION 122.22, (AUTHORIZATION), HAS BEEN INCORPORATED INTO THE
NEW SECTION 122.21(B). SECTION 122.21(C) PROVIDES A BRIEF OVERVIEW OF
THE RCRA PERMIT PROCESS. THE APPLICATION PROCEDURES FOR EXISTING AND
NEW FACILITIES ARE EXPLAINED.
(1) INCLUSIONS AND EXCLUSIONS. PARAGRAPH 122.21(D) (PROPOSED SECTION
122.21(C)) LISTS SOME ACTIVITIES AND FACILITIES WHICH ARE INCLUDED AND
EXCLUDED FROM THE RCRA PERMIT APPLICATION REQUIREMENT. THE INCLUSIONS
ARE NOT AN EXHAUSTIVE LIST, BUT FOCUS ATTENTION ON CERTAIN ACTIVITIES
WHICH MAY ALSO HAVE PERMITS UNDER OTHER EPA PROGRAMS. THE EXCLUSIONS
LIST ACTIVITIES EXEMPTED BY THE OTHER RCRA REGULATIONS.
A NUMBER OF COMMENTS SUGGESTED EXCLUDING FROM THE RCRA PERMIT
REQUIREMENTS TREATMENT, STORAGE AND DISPOSAL FACILITIES HANDLING VARIOUS
TYPES OF WASTES, SUCH AS PETROLEUM WASTES, DOMESTIC SEWAGE SLUDGE,
INDUSTRIAL SEWAGE SLUDGES, OTHER INDUSTRIAL SLUDGES, AND SMALL
QUANTITIES OF WASTES. THEY SUGGESTED THAT CERTAIN WASTES HAD A LOW
DEGREE OF HAZARD, THAT OTHERS WERE NOT COVERED BY THE RCRA DEFINTION OF
SOLID WASTE, THAT CERTAIN WASTES WERE SIMILAR TO OTHER EXCLUDED WASTES,
AND THAT THERE WOULD BE ADVERSE ECONOMIC IMPACT IF FACILITIES FOR SUCH
WASTES HAD TO COMPLY WITH THE RCRA REQUIREMENTS. THESE ARE ISSUES WHICH
PERTAIN TO THE RCRA SECTION 3001 REGULATION FOR THE IDENTIFICATION OF
HAZARDOUS WASTES AND THE SECTION 3004 REGULATION FOR STANDARDS FOR
HAZARDOUS WASTE MANAGEMENT FACILITIES, AND WILL BE ADDRESSED IN THE
RULEMAKING ON THOSE SECTIONS. THE ONE EXCEPTION CONCERNS DISSOLVED
MATERIAL IN DOMESTIC SEWAGES, WHICH IS DISCUSSED BELOW.
(2) COVERAGE OF NPDES SURFACE IMPOUNDMENTS. PROPOSED SECTION 122.21
WOULD HAVE REQUIRED A RCRA PERMIT FOR ANY SURFACE IMPOUNDMENT ASSOCIATED
WITH A WASTEWATER TREATMENT PLANT OTHER THAN A POTW THAT TREATS OR
STORES HAZARDOUS WASTE. VIRTUALLY EVERY ASPECT OF THIS PROPOSAL PROVED
CONTROVERSIAL.
MANY COMMENTS WERE RECEIVED STATING THAT SUCH IMPOUNDMENTS AT
FACILITIES HAVING NPDES PERMITS SHOULD BE EXCLUDED FROM THE RCRA PERMIT
REQUIREMENTS. SOME ARGUED THAT THERE WAS NO BASIS FOR REQUIRING NPDES
INDUSTRIAL SURFACE IMPOUNDMENTS BUT NOT SURFACE IMPOUNDMENTS AT POTWS TO
OBTAIN A RCRA PERMIT. OTHERS ARGUED THAT NPDES SURFACE IMPOUNDMENTS
SHOULD BE ISSUED A PERMIT-BY-RULE LIKE POTWS.
THE PROPOSED EXCLUSION OF SURFACE IMPOUNDMENTS AT POTWS WAS BASED
UPON THE RCRA DEFINITION OF SOLID WASTE WHICH EXCLUDES SOLID OR
DISSOLVED MATERIAL IN DOMESTIC SEWAGE.
AS THE PREAMBLE TO THE SECTION 3001 REGULATIONS EXPLAINS IN DETAIL,
EPA HAS RE-EXAMINED THIS QUESTION IN THE LIGHT OF COMMENTS RECEIVED.
THAT RE-EXAMINATION HAD LED EPA TO REAFFIRM ITS ORIGINAL CONCLUSION
THAT MATERIAL WHICH IS (1) MIXED WITH DOMESTIC SEWAGE IN A SEWER AND
THEN (2) DISCHARGED FROM THE SEWER INTO A POTW, IS EXEMPTED BY THE
STATUTE FROM TREATMENT AS SOLID WASTE. THIS CONCLUSION IS BEING
PROMULGATED IN INTERIM FINAL FORM. ADDITIONAL COMMENTS ON IT ARE
INVITED AND WILL BE CONSIDERED.
THAT CONCLUSION LEAVES OPEN TWO QUESTIONS CONCERNING THE COVERAGE OF
THE RCRA PERMIT REQUIREMENTS.
THE FIRST CONCERNS WHAT HAPPENS WHEN HAZARDOUS WASTES ARE DISCHARGED
INTO A POTW WITHOUT LOSING THEIR HAZARDOUS CHARACTER BY BEING MIXED WITH
DOMESTIC SEWAGE IN A SEWER. /1/ FOR EXAMPLE, THE HAZARDOUS WASTES MIGHT
BE DUMPED INTO THE POTW FROM A TRUCK OR TANK CAR, OR THEY MIGHT BE
DISCHARGED INTO IT FROM A PIPE WHICH CARRIED ONLY INDUSTRIAL WASTES AND
DID NOT CARRY DOMESTIC SEWAGE.
IN THESE CASES THE BASIC LOGIC OF THE ARGUMENT FOR EXEMPTING
"DISSOLVED MATERIAL IN DOMESTIC SEWAGE" STILL HOLDS. THE WASTES WILL BE
PLACED IN A FACILITY THAT IS SUBJECT TO A PERVASIVE SET OF FEDERAL
REGULATORY AND SUBSIDY PROVISIONS (INCLUDING THE PRETREATMENT PROGRAM)
THAT SHOULD BE SUFFICIENT TO DEAL WITH ANY HAZARDOUS WASTE PROBELMS BY
THEMSELVES. ACCORDINGLY, IN THESE CASES THE POTW RECEIVING THE WASTE
WILL BE GRANTED A PERMIT BY RULE (SECTION 122.26(C)). THE PERMIT BY
RULE IS NECESSARY TO ENSURE THAT ANY APPLICABLE MANIFEST IS RETURNED AND
FOR THE FORMAL REQUIREMENTS OF RCRA ARE OTHERWISE SATISFIED.
THE SECOND QUESTION IS WHETHER A HAZARDOUS WASTE WHICH HAS COME UNDER
THE MANIFEST SYSTEM MAY BE DEPOSITED INTO A SEWER, BECOME MIXED WITH
DOMESTIC SEWAGE, AND THEREBY LOSE ITS HAZARDOUS CHARACTER.
THE ANSWER TO THIS QUESTION IS "NO." MANIFESTED WASTES MAY ONLY BE
DELIVERED TO AN APPROVED HWM FACILITY, AND SEWER SYSTEMS WILL NOT BE
APPROVED FOR THAT PURPOSE. SEWER SYSTEMS ARE OBVIOUSLY NOT HWM
FACILITIES IN ANY NORMAL SENSE OF THE WORD, AND THERE IS NO ASSURANCE
THAT WASTES DEPOSITED IN THEM WOULD BE TREATED, STORED OR DISPOSED OF IN
A MANNER CONSISTENT WITH THE PURPOSES OF RCRA. SUCH DISPOSAL WOULD BE
SIGNIFICANTLY HARDER TO REGULATE UNDER EXISTING AUTHORITIES THAN
DISPOSAL DIRECTLY INTO THE POTW. CONGRESS WHEN IT CREATED AN EXEMPTION
FOR DISSOLVED MATERIAL IN DOMESTIC SEWAGE HAD IN MIND AVOIDING
DISRUPTION OF THE EXISTING PATTERNS OF FUNDING AND OPERATION OF POTWS
RECEIVING WASTE FROM "INDIRECT DISCHARGERS," NOT ALLOWING ADDITIONAL
UNREGULATED DISCHARGES BY THOSE NOT CURRENTLY MAKING USE OF THE
TREATMENT SYSTEM.
COMMENTS ALSO STATED THAT NPDES SURFACE IMPOUNDMENTS SHOULD NOT BE
REQUIRED TO OBTAIN A RCRA PERMIT BECAUSE THEY POSE NO THREAT TO HUMAN
HEALTH AND THE ENVIRONMENT OR SHOULD NOT HAVE TO OBTAIN A PERMIT WHERE
THE OWNER OR OPERATOR CAN DEMONSTRATE THAT NO HARM TO GROUNDWATER WILL
OCCUR.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 031 OF 225
COSTLE DM ADMINISTRATOR
EPA
113530
REGULATIONS
/2/ EPA INTENDS TO PROMULGATE REGULATIONS IN JUNE OF 1980 LISTING OR
DESIGNATING ADDITIONAL WASTES BEYOND THOSE LISTED OR DESIGNATED IN ITS
INITIAL PROMULGATION. THE WASTES TO BE LISTED OR DESIGNATED IN JUNE ARE
SET FORTH IN AN APPENDIX TO THE INITIAL PROMULGATION. EPA ENCOURAGES
OWNERS OR OPERATORS APPLYING FOR INTERIM STATUS BEFORE THAT SECOND SET
OF WASTES IS ACTUALLY PUBLISHED TO LIST OR DESIGNATE ANY OF THE WASTES
IN THAT SET WHICH THEY ARE TREATING, STORING OR DISPOSING OF. THAT WILL
AVOID THE NEED TO UPDATE THE PART A APPLICATION EXTENSIVELY WHEN
PROMULGATION OCCURS.
OTHERS STATED THAT REQUIRING NPDES SURFACE IMPOUNDMENTS TO OBTAIN
RCRA PERMITS WOULD BE VERY COSTLY AND FORCE MAJOR RETROFITTING OR
ABANDONMENT OF SUCH FACILITIES. THESE COMMENTS ADDRESS THE NEED FOR AND
NATURE OF THE TECHNICAL STANDARDS FOR SURFACE IMPOUNDMENTS AND ARE IN
FACT COMMENTS ON THE RCRA SECTION 3004 STANDARDS FOR TREATMENT, STORAGE
AND DISPOSAL FACILITIES, RATHER THAN COMMENTS ON THE APPLICABILITY OF
THE PERMIT PROGRAM.
AS THE PREAMBLE TO THOSE REGULATIONS EXPLAINS, EPA HAS SIGNIFICANTLY
AMENDED THESE REQUIREMENTS TO REDUCE TO A MINIMUM THE NEED FOR
BURDENSOME RETROFFING. HOWEVER, AS EXPLAINED BELOW, THESE FACILITIES
CANNOT BE COMPLETELY EXEMPTED FROM RCRA COVERAGE BECAUSE OF THEIR
POTENTIAL FOR CAUSING AIR POLLUTION OR GROUNDWATER POLLUTION WHICH
CANNOT BE REMEDIED UNDER THE NPDES PERMIT.
COMMENTERS ALSO ARGUED THAT NPDES SURFACE IMPOUNDMENTS WERE
ADEQUATELY CONTROLLED BY VARIOUS PROGRAMS UNDER THE CLEAN WATER ACT SUCH
AS THE NPDES AND BMP PROGRAMS. COMMENTS ALSO STATED THAT THE
REQUIREMENT FOR A RCRA PERMIT WAS INCONSISTENT AND DUPLICATIVE OF THE
GOALS AND REGULATIONS OF THE CLEAN WATER ACT. EPA HAS CONSIDERED ALL OF
THESE ARGUMENTS BUT BELIEVES THAT A RCRA PERMIT IS NECESSARY FOR THESE
FACILITIES. LIMITATIONS IMPOSED IN NPDES PERMITS ARE DIRECTED TOWARD
THE QUALITY OF DISCHARGES TO SURFACE WATERS. THE TECHNOLOGY TO ACHIEVE
THE LIMITATION MAY REQUIRE CONSTRUCTION OF SURFACE IMPOUNDMENTS,
ALTHOUGH THE OBJECTIVE OF SUCH CONSTRUCTION IS TO ASSIST IN THE ULTIMATE
PREVENTION OF POLLUTION OF SURFACE WATERS. IMPROPER CONTAINMENT OF
WASTES IN SURFACE IMPOUNDMENTS MAY RESULT IN POLLUTION OF GROUNDWATER
AND A SERIES OF OTHER ADVERSE HUMAN HEALTH AND ENVIRONMENTAL IMPACTS.
THESE TYPES OF PROBLEMS ARE NOT DIRECTLY ADDRESSED THROUGH NPDES
PERMITS, BUT ARE DIRECTLY REGULATED UNDER RCRA. THE CWA DOES NOT
PROVIDE AUTHORITY TO SET STANDARDS FOR CONSTRUCTION OF IMPOUNDMENTS TO
PREVENT GROUNDWATER POLLUTION BUT STANDARDS FOR SUCH CONSTRUCTION ARE
SPECIFICALLY PROVIDED FOR IN SECTION 3004(4) OF RCRA. FURTHER, LEAVING
RESOLUTION TO BMPS UNDER CWA WILL NOT SOLVE THE PROBLEM, AS BMPS ARE
DIRECTED TOWARD CONTROLLING ONLY DESIGNATED POLLUTANTS UNDER SECTIONS
307 OR 311 OF CWA AND ONLY SO FAR AS THEY MAY REACH A NAVIGABLE WATER.
THEREFORE BOTH NPDES AND RCRA PERMITS ARE NECESSARY FOR SUCH FACILITIES,
BECAUSE EACH PERMIT PROGRAM IS DIRECTED TOWARD CONTROL OF DIFFERENT
TYPES OF POLLUTION. ANY POTENTIAL INCONSISTENCY AND DUPLICATION CAN BE
MINIMIZED IF THE PERMIT PROGRAMS ARE CONSOLIDATED AS PROVIDED FOR IN
THESE REGULATIONS.
COMMENTERS SUGGESTED THAT COVERAGE OF SURFACE IMPOUNDMENTS (PROPOSED
SECTION 122.21(C)(3)) SHOULD BE CLARIFIED TO STATE THAT RCRA PERMITS
SHOULD ONLY BE REQUIRED FOR SURFACE IMPOUNDMENTS IF THE WATER IS
HAZARDOUS AT THE POINT OF DISCHARGE, REGARDLESS OF THE CONDITION AT THE
POINT OF ENTRY TO THE SYSTEM. THE PROPOSAL STATED THAT ANY SURFACE
IMPOUNDMENT THAT TREATS OR STORES HAZARDOUS WASTE MUST OBTAIN A RCRA
PERMIT FOR THAT IMPOUNDMENT UP TO THE POINT OF DISCHARGE. THE REASON
FOR REQUIRING A RCRA PERMIT UP TO THE POINT OF DISCHARGE IS TO
ADEQUATELY PROTECT PUBLIC HEALTH AND THE ENVIRONMENT FROM HAZARDOUS
WASTE PLACED IN THE FACILITY. THE DISCHARGE ITSELF WOULD BE CONTROLLED
UNDER CWA. THE REGULATIONS HAVE BEEN RESTRUCTURED FOR CLARITY AND THE
PROPOSED LANGUAGE "UP TO THE POINT OF DISCHARGE" IS NO LONGER CONTAINED
IN THESE REGULATIONS BUT THE CONCEPT REMAINS THE SAME.
PROPOSED SECTION 122.23 DESCRIBED PERMIT APPLICATION REQUIREMENTS FOR
EXISTING AND NEW HWM FACILITIES, SET FORTH A TWO PART APPLICATION
PROCESS FOR EXISTING FACILITIES, AND DESCRIBED THE INFORMATION TO BE
INCLUDED IN PARTS A AND B OF THE APPLICATION. THE CONTENTS OF PART A
AND PART B OF THE APPLICATION ARE NOW DESCRIBED IN SECTIONS 122.24 AND
122.25 RESPECTIVELY. THE REMAINDER OF PROPOSED SECTION 122.23 HAS BEEN
MOVED TO SECTION 122.22 AND REWRITTEN TO PROVIDE BETTER CONTINUITY TO
THE REGULATION AND TO PROVIDE GREATER INFORMATION ON THE TIMING OF
APPLICATIONS AND TO WHOM THEY SHOULD BE MADE, PARTICULARLY IN THE LIGHT
OF THE APPROACH TO INTERIM AUTHORIZATION NOW SET FORTH IN PART 123.
THE MAJOR TOPICS COVERED BY THIS SECTION -- TIMING AND ADDRESS OF
APPLICATIONS, THE TWO PART APPLICATION PROCESS, THE REQUIREMENT FOR A
PERMIT PRIOR TO NEW FACILITY CONSTRUCTION, AND REVOCATION OF INTERIM
STATUS -- WILL BE ADDRESSED IN TURN.
(1) TIMING AND ADDRESS OF APPLICATIONS. FOR EXISTING HWM FACILITIES,
THE PERMIT PROCESS BEGINS WITH THE PUBLICATION OF THE RCRA PROGRAM
REGULATIONS CONTAINED ELSEWHERE IN THIS ISSUE OF THE FEDERAL REGISTER.
THAT EVENT TRIGGERS THE OBLIGATION TO FILE 3010 NOTIFICATION WITHIN 90
DAYS AND TO FILE A PART A PERIT APPLICATION WITHIN SIX MONTHS. /2/
ALL THESE NOTIFICATIONS AND APPLICATIONS MUST BE SENT TO THE REGIONAL
ADMINISTRATOR WHOSE REGION COVERS THE STATE IN WHICH THE FACILITY IS
LOCATED. ONLY STATES WITH PHASE I INTERIM AUTHORIZATION CAN RECEIVE
3010 NOTICES AND ONLY STATES WITH PHASE II INTERIM AUTHORIZATION CAN
RECEIVE AND PROCESS PERMIT APPLICATIONS. NO STATE PROGRAMS IN THESE
CATEGORIES WILL HAVE BEEN APPROVED BY THE DATES SET FOR SUBMISSION OF
THESE DOCUMENTS. (IF A STATE PROGRAM IS APPROVED THEREAFTER, THE
INFORMATION IN THESE CATEGORIES WILL BE TRANSFERRED TO THE STATE).
STARTING WITH THE PROMULGATION OF THE REMAINING PART 264 REGULATIONS,
IN THE FALL OF 1980 STATES WITH APPROVED PHASE II INTERIM AUTHORIZATION
OR FINAL PROGRAMS, AND THE REGIONAL ADMINISTRATOR WHERE THAT APPROVAL
DOES NOT EXIST, WILL BE ABLE TO REQUIRE SUBMISSION OF A PART B
APPLICATION AND PROCEED TO FINAL PERMIT ACTION. SINCE THE PERMITTING
AUTHORITY MUST ALLOW SIX MONTHS FOR PREPARATION OF THE APPLICATION,
ACTUAL SUBMISSION OF THE PART B APPLICATION CANNOT BE REQUIRED BEFORE
THE SPING OF 1981.
FOR NEW SOURCES, THE REGULATIONS PROHIBIT CONSTRUCTION WITHOUT A
PERMIT. FOR THE REASONS SET FORTH LATER IN THIS PREAMBLE, EPA BELIEVS
SUCH A RULE IS ESSENTIAL TO CARRY OUT THE PURPOSES OF RCRA. EXACTLY HOW
IT OPERATES IN PRACTICE, HOWEVER, WILL BE IMPOSSIBLE TO DETERMINE UNTIL
CONGRESS TAKES FINAL ACTION ON THE PENDING RCRA AMENDMENTS. THAT ISSUE
IS ALSO DISCUSSED LATER IN THIS PREAMBLE.
FINALLY, THE REGULATIONS EXPLAIN THE REQUIREMENTS FOR UPDATING PERMIT
APPLICATIONS. BRIEFLY, PART A APPLICATIONS MUST BE UPDATED AS NEEDED TO
ACCOUNT FOR ANY NEW HAZARDOUS WASTES BEING HANDLED BY THE FACILITY. A
FACILITY CAN BEGIN TO HANDLE A NEW HAZARDOUS WASTE EITHER BECAUSE THE
WASTE WAS ALREADY LISTED AS HAZARDOUS AND THE FACILITY HAS JUST BEGUN TO
HANDLE IT, OR BECAUSE THE FACILITY WAS ALREADY HANDLING A WASTE NEWLY
LISTED OR DESIGNATED BY EPA OR BY THE STATE AS HAZARDOUS. BOTH
SITUATIONS REQUIRE REVISION OF THE PART A APPLICATION OR ELSE THE
FACILITY WILL NOT OBTAIN INTERIM STATUS FOR THE WASTES NOT LISTED. (AS
NOTED ABOVE, EPA INTENDS TO LIST OR DESIGNATE ADDITIONAL WASTES AS
HAZARDOUS IN JUNE OF THIS YEAR.)
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 032 OF 225
COSTLE DM ADMINISTRATOR
EPA
113531
REGULATIONS
A MORE FLEXIBLE RULE APPLIES FOR PART B OF THE APPLICATION. EPA WILL
APPLY ANY NEW REQUIREMENTS THAT BECOME APPLICABLE BEFORE A FINAL PERMIT
IS ISSUED, BUT NO SET PROCEDURES OR FILING REQUIREMENTS ARE PRESCRIBED
TO BE FOLLOWED IN SUCH A SITUATION. THE NORMAL NOTICE AND COMMENT
PROCEDURES, AND WHERE NECESSARY SECTION 124.14, PROVIDE ENOUGH
FLEXIBILITY TO COPE WITH ANY PARTICULAR SITUATIONS THAT MAY ARISE. FOR
EXAMPLE, IF A SIGNIFICANT NUMBER OF NEW WASTES WERE LISTED AND A
FACILITY WITH A PERMIT APPLICATION UNDER CONSIDERATION WAS TREATING,
STORING, OR DISPOSING OF THEM, EPA COULD REQUIRE SUBMISSION OF AN
UPDATED PERMIT APPLICATION UNDER SECTION 124.14.
(2) THE TWO PART APPLICATION PROCESS. SEVERAL COMMENTERS OBJECTED TO
THE TWO PART APPLICATION PROCESS, SOME CLAIMING THAT THERE WAS NO
AUTHORITY FOR SUCH A PROCESS. OTHERS FELT THAT THE PART A APPLICATION
SHOULD OBTAIN MUCH MORE INFORMATION SUCH AS HYDROGEOLOGICAL, GEOLOGICAL
AND CLIMATOLOGICAL DATA OR INFORMATION TO DETERMINE COMPLIANCE WITH THE
INTERIM STATUS STANDARDS. COMMENTERS ALSO STATED THAT THE INFORMATION
CONTAINED IN PART A WAS NOT SUFFICIENT TO ESTABLISH PERMITTING
PRIORITIES.
DESPITE THESE COMMENTS EPA HAS DECIDED TO MAINTAIN THE TWO PART
APPLICATION PROCESS FOR EXISTING FACILITIES. EPA BELIEVES THIS APPROACH
IS LEGALLY JUSTIFIED AND THAT THE POLICY ARGUMENTS FOR IT ARE
CONCLUSIVE.
NOTHING IN RCRA REQUIRES THAT ALL THE INFORMATION FOR A FINAL
DECISION BE SUBMITTED AS PART OF THE "APPLICATION" NEEDED TO TRIGGER
INTERIM STATUS. IN MANY PERMIT PROCEEDINGS SIGNIFICANT NEW INFORMATION
IS LIKELY TO COME IN DURING THE PUBLIC COMMENT PERIOD OR AT THE PUBLIC
HEARING WELL AFTER FILING OF THE APPLIATION AND THEREBY AFFECT THE FINAL
CONDITIONS OF THE PERMIT.
INDEED, THE STATUTE ITSELF RECOGNIZES THAT CONSIDERABLE SUPPLEMENTING
OF THE INITIAL "APPLICATION" MAY BE REQUIRED BEFORE A FINAL DECISION
WHEN IT PROVIDES FOR REVOKING INTERIM STATUS (WHICH, OF COURSE, CAN ONLY
BE GRANTED UPON THE FILING OF AN "APPLICATION") FOR FAILURE TO "FURNISH
(FURTHER) INFORMATION REASONABLY REQUIRED OR REQUESTED IN ORDER TO
PROCESS THE APPLICATION" RCRA SECTION 3005(D).
BEYOND THIS, RCRA CONTEMPLATES THAT FACILITIES WILL BE ABLE TO
QUALIFY FOR "INTERIM STATUS" BY FILING WITHIN SIX MONTHS OF ISSUANCE OF
THE 3001 REGULATIONS, EVEN THOUGH AFFIRMATIVE EPA ACTION ON THOSE
PERMITS MAY NOT TAKE PLACEFOR AN APPRECIABLE TIME THEREAFTER. EPA
EXPECTS THAT IN THE LIGHT OF THE MAGNITUDE OF THE REGULATORY PROGRAM NOW
BEING STARTED, MANY FACILITIES MAY NOT RECEIVE THEIR FINAL PERMIT FOR
SEVERAL YEARS.
ACCORDINGLY, EPA HAS DESIGNED THE APPLICATION REQUIREMENTS TO FIT THE
OVERALL STRUCTURE OF THE PROGRAM WHICH THEY SERVE. THE PART A
APPLICATION IS DESIGNED TO ENABLE FACILITIES TO QUALITY FOR INTERIM
STATUS WITHIN THE SIX MONTHS FILING DEADLINE, AND TO PROVIDE EPA WITH
INFORMATION THAT WILL BE USEFUL TO DETERMINE IN WHICH INSTANCES TO MOVE
ON TO THE NEXT STAGE BY REQUIRING SUBMISSION OF A PART B. THE
ALTERNATIVE SUGGESTED BY SOME COMMENTERS -- REQUIRING BOTH PARTS TO BE
SUBMITTED AS A CONDITION OF INTERIM STATUS -- WOULD MAKE IT MUCH MORE
DIFFICULT AND COSTLY TO QUALIFY FOR INTERIM STATUS. IN ADDITION, IT
WOULD REQUIRE ALL OWNERS AND OPERATORS FILING FOR INERIM STATUS TO
FURNISH A GREAT DEAL OF INFORMATION THAT EPA WOULD LACK THE RESOURCES TO
REVIEW FOR SEVERAL YEARS. BY THE TIME EPA DID REVIEW THAT INFORMATION,
MUCH OF IT WOULD PROBABLY HAVE BECOME OUTDATED.
PART A OF THE PERMIT APPLICATION HAS NOT BEEN DESIGNED TO DETERMINE
COMPLIANCE WITH THE INTERIM STATUS STANDARDS AS SOME COMMENTS SUGGESTED.
COMBINING COMPLIANCE MONITORING INFORMATION AND PERMIT APPLICATION
INFORMATION ON ONE FORM WOULD RESULT IN A COMPLICATED DOCUMENT THAT
WOULD NOT SERVE EITHER PURPOSE VERY WELL. MONITORING OF COMPLIANCE WITH
THE INTERIM STATUS STANDARDS WILL BE CARRIED OUT THROUGH SEPARATE
INFORMATION COLLECTION AND FACILITY INSPECTION ACTIVITIES.
THE INFORMATION CONTAINED IN PART A SHOULD A-LOW EPA TO ESTABLISH
INITIAL PRIORITIES FOR PERMITTING OF FACILITIES. THE PART A
APPLICATIONS WILL PROVIDE THE TYPE OF DATA NEEDED FOR SETTING PRIORITIES
WHICH IS NOT PRESENTLY AVAILABLE, SUCH AS DESIGN CAPACITIES AND TYPES
AND QUANTITIES OF WASTES HANDLED AT INDIVIDUAL FACILITIES AS WELL AS
PROXIMITY TO DRINKING WATER WELLS. THE INITIAL PRIORITIES CAN BE
FURTHER REFINED USING COMPLIANCE MONITORING REPORTS, ANNUAL REPORTS AND
INFORMATION FROM THE PART B APPLICATIONS.
COMMENTS ON PROPOSED SECTION 122.23(A)(2) OBJECTED TO WAITING FOR A
NOTICE BY THE DIRECTOR BEFORE SUBMITTING PART B OF THE PERMIT
APPLICATION, STATING THAT SOME FACILITY OWNERS OR OPERATORS MAY DESIRE
TO OBTAIN PERMITS AS SOON AS POSSIBLE. NOTHING IIN THE REGULATIONS
PREVENTS THE SUBMITTAL OF PART B PRIOR TO REQUEST BY THE DIRECTOR. SIX
MONTHS NOTICE FOR SUBMITTAL OF PART B AS ESTABLISHED TO ALLOW APPLICANTS
ADEQUATE TIME TO GATHER ANY NECESSARY INFORMATION FOR SUBMISSION OF AN
APPLICATION. EARLIER SUBMITTALS ARE ALWAYS POSSIBLE.
(2) PERMIT PRIOR TO CONSTRUCTION OF NEW FACILITIES. MANY COMMENTERS
OBJECTED TO SECTION 122.23(B) WHICH WOULD REQUIRE A PERMIT PRIOR TO
CONSTRUCTION OF A NEW HWM FACILITY. MANY COMMENTERS ARGUED THAT THIS
PROVISION IS ILLEGAL UNDER SECTION 3005(A) OF RCRA, STATING THAT RCRA
ONLY REQUIRES PERMITS FOR THE OPERATION OF FACILITIES AND ONLY PROHIBITS
THE ACTUAL HANDLING OF HAZARDOUS WASTE WITHOUT A PERMIT. COMMENTERS
ALSO STATED THAT THIS PROVISION WILL TIE-UP CAPITAL AND AGGRAVATE
EXISTING AND FUTURE CAPACITY PROBLEMS. SOME ARGUED THAT INDUSTRY SHOULD
BE ALLOWED TO PROCEED AT THEIR OWN RISK DURING CONSTRUCTION AND APPLY
FOR A PERMIT DURING OR AFTER COMPLETION OF CONSTRUCTION.
ONCE AGAIN, EPA BELIEVES THAT THE PROPOSED APPROACH SHOULD BE ADOPTED
FOR BOTH LEGAL AND POLICY REASONS.
SECTION 3004 OF RCRA REQUIRES THE AGENCY TO PROMULGATE REGULATIONS
SPECIFYING, AMONG OTHER THINGS, THE LOCATIONS, DESIGN AND CONSTRUCTION
OF HWM FACILITIES. THOSE REGULATIONS WILL ONLY TAKE FULL EFFECT AND
HAVE FULL MEANING FOR A GIVEN FACILITY WHEN THEY ARE APPLIED TO AND
INCORPORATED INTO THE PERMIT FOR THAT FACILITY. CONGRESS WHEN IT
INCORPORATED A PERMIT REQUIREMENT INTO RCRA MUST HAVE MEANT THE TASK OF
PERMITTING TO HAVE INDEPENDENT REGULATORY SIGNIFICANCE, AND EPA INTENDS
IN ITS FINAL PART 264 REGULATIONS TO ALLOW FLEXIBILITY IN ADAPTING THE
REQUIREMENTS OF THOSE REGULATIONS TO SPECIFIC SITES. GIVEN THE VARIETY
OF DIFFERENT SITUATIONS THAT THESE FACILITES MAY PRESENT, AND THE
NEWNESS OF THE PROGRAM, THE OPPOSITE COURSE -- APPLYING SPECIFIC
NATIONAL REQUIREMENTS AUTOMATICALLY TO ANY FACILITY WHATEVER ITS
CIRCUMSTANCES -- WOULD NOT BE RATIONAL. MANY INDUSTRIES THAT COMMENTED
ON THE PROPOSED REGULATIONS MADE THIS POINT.
IF FACILITIES WERE FREE TO MAKE SUBSTANTIAL COMMITMENTS TO A GIVEN
FACILITY, LOCATION, DESIGN OR CONSTRUCTION BEFORE RECEIVING THEIR RCRA
PERMITS, THE PURPOSE OF THE STATUTE COULD VERY READILY BE UNDERMINED FOR
NO REASON.
THE OVERRIDING PURPOSE OF THE SECTION 3004 STANDARDS IS TO "PROTECT
HUMAN HEALTH AND THE ENVIRONMENT." THERE IS A SIGNIFICANTLY GREATER
LIKELIHOOD THAT PERMIT WRITERS WILL BE ABLE TO SET "LOCATION, DESIGN,
AND CONSTRUCTION" PERMIT TERMS THAT SERVE THAT PURPOSE FOR NEW
FACILITIES IF THEY MAKE THE PERMIT DECISION BEFORE A SUBSTANTIAL AND
IRRETRIEVABLE FINANCIAL COMMITMENT IS MADE TO THE LOCATION, DESIGN, AND
CONSTRUCTION WHICH THE APPLICANT ITSELF HAS CHOSEN. ALLOWING SUCH
COMMITMENTS TO BE MADE BEFORE ASSURING THAT THEY WILL BE IN CONFORMITY
WITH THE BEST APPLICATION OF THESTATUTE WOULD FORCE THE PERMITTING
AGENCY TO THE UNJUSTIFIABLE CHOICE OF EITHER REQUIRING A LESSER DEGREE
OF HEALTH AND ENVIRONMENTAL PROTECTION THAN WOULD OTHERWISE HAVE
APPLIED, OR FORCING THE ABANDONMENT OR DEVALUATION OF THE PREMATURE
INVESTMENT.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 033 OF 225
COSTLE DM ADMINISTRATOR
EPA
113532
REGULATIONS
/3/ FAILURE TO FURNISH AN ACCEPTABLE PART A, BY CONTRAST, MEANS THAT
INTERIM STATUS NEVER STARTS.
THE ONLY SIGNIFICANT ARGUMENT MADE IN FAVOR OF ALLOWING CONSTRUCTION
TO BEGIN BEFORE RECEIPT OF A PERMIT WAS THAT IT WOULD AVOID DELAY IN THE
CONSTRUCTION OF HWM FACILITIES. HOWEVER, EPA BELIEVES THIS ARGUMENT IS
FLAWED EVEN ON ITS OWN TERMS AND THAT IT LACKS PERSUASIVE FORCE WHEN
COMPARED WITH THE ARGUMENTS FOR FORBIDDING THAT CONSTRUCTION. NOTHING
IN THESE REGULATIONS PREVENTS OWNERS OR OPERATORS FROM APPLYING FOR A
PERMIT EARLY IN THEIR PLANNING PROCESS. IF THE FACILITY IS SMALL, THE
A-PLICATION CAN PROBABLY BE PROCESSED QUITE QUICKLY. IF THE FACILITY IS
LARGE, THEN THE PERMIT PROCESSING TIME WILL PROBABLY BE A SMALL PART OF
THE TOTAL TIME NEEDED FOR DESIGN, FINANCING, OBTAINING OTHER APPROVALS,
AND THE LIKE. THERE IS NO REASON IN EITHER CASE FOR THE PERMIT ITSELF
TO BECOME A CRITICAL PATH ITEM. EPA HAS MADE PARTICULAR PROVISIONS IN
THESE REGULATIONS FOR EXPEDITING CONSIDERATION OF PERMITS FOR NEW
FACILITIES.
SOME COMMENTERS OBJECTED TO THE REQUIREMENT FOR SUBMITTING A PERMIT
APPLICATION FOR NEW FACILITIES 180 DAYS BEFORE PHYSICAL CONSTRUCTION IS
EXPECTED TO COMMENCE. THEY ARGUED THAT THIS WAS TOO LONG A PERIOD AND
THAT OWNERS AND OPRATORS WOULD NOT HAVE THE INFORMATION NECESSARY TO
COMPLETE THE PERMIT APPLICATION THAT FAR IN ADVANCE. EPA BELIEVES THAT
THE 180 DAY PERIOD IS NECESSARY IN ORDER TO PROVIDE ADEQUATE TIME TO
PROVIDE FOR PUBLIC NOTICE AND COMMENT, HOLD A PUBLIC HEARING IF
NECESSARY AND COMPLETE AN EVALUATION OF THE APPLICATION WHICH IN SOME
INSTANCES MAY BE QUITE LENGTHY AND COMPLEX. IF ON A CASE-BY-CASE BASIS
THE PERMITTING PROCESS CAN BE COMPLETED IN LESS THAN 180 DAYS, IT WILL
BE. HOWEVER, A 180 DAY PERIOD WILL BE NECESSARY FOR MANY FACILITIES AND
WILL BE USED AS THE GENERAL RULE. FACILITY OWNERS AND OPERATORS SHOULD
HAVE ALL OF THE NECESSARY INFORMATION TO SUBMIT AN APPLICATION 180 DAYS
PRIOR TO PHYSICAL CONSTRUCTION BECAUSE THEY WILL NEED THAT INFORMATION
IN ORDER TO ENSURE THAT THE FACILITY IS LOCATED, DESIGNED AND
CONSTRUCTED IN COMPLIANCE WITH THE SECTION 3004 STANDARDS.
(3) REVOCATION OF INTERIM STATUS. THE PROPOSED REGULATION PROVIDED
(AT SECTION 122.23) THAT INTERIM STATUS COULD BE TERMINATED WITHOUT
PROCESS FOR FAILURE TO SUBMIT AN ADEQUATE PART B APPLICATION WHEN
REQUIRED. COMMENTERS FELT THIS PROVISION WAS UNDULY HARSH, NOT
SUFFICIENTLY DEFINED, POSSIBLY DETERIMENTAL TO THE ENVIRONMENT AND IN
VIOLATION OF SECTION 3008 OF RCRA.
ALTHOUGH EPA BELIEVES THE QUESTION IS DEBATABLE, IT HAS ACCEPTED IN
THESE FINAL REGULATIONS THE POSITION OF COMMENTERS WHO CLAIMED THAT
"INTERIM STATUS" CANNOT BE TERMINATED WITHOUT PROVIDING AN OPPORTUNITY
FOR AN EVIDENTIARY HEARING. PART 124 HAS BEEN MODIFIED ACCORDINGLY.
IN ACCORDANCE WITH THE PLAIN LANGUAGE OF SECTION 3005(D), THE ONLY
GROUNDS FOR TERMINATION OF INTERIM STATUS WILL BE THE FAILURE TO FURNISH
INFORMATION REASONABLY REQUIRED TO PROCESS A PERMIT APPLICATION. THIS
PROVISION OF COURSE INCLUDES FAILURE TO RESPOND ON TIME TO A REQUEST FOR
A PART B APPLICATION, OR FAILURE TO FURNISH EITHER PART A OR PART B IN
AN ACCEPTABLE FORM /3/
BECAUSE OF THIS LIMITED TEST, IN MANY CASES THE FACTS RELEVANT TO THE
DECISION WILL PROBABLY NOT BE DISPUTED. THEREFORE, EPA ANTICIPATES THAT
TERMINATION OF INTERIM STATUS WILL OFTEN BE A CANIDATE FOR SUMMARY
DISPOSITION UNDER SECTION 124.75(A)(1).
WHEN QUESTIONS ABOUT THE CONFORMITY OF THE SITE TO THE SUBSTANTIVE
STANDARDS OF PART 265 ARE AT ISSUE, INTERIM STATUS WILL NOT BE
TERMINATED IN THIS MANNER. AS THE PREAMBLE TO THOSE REGULATIONS
EXPLAINS, THEY ARE MEANT TO BE ENFORCEABLE APART FROM ANY PERMIT
MECHANISM. NOR WILL SEPARATE PROCEEDINGS TO REVOKE INTERIM STATUS BE
REQUIRED WHEN A PERMIT APPLYING THE PERMANENT STATUS STANDARDS OF PART
264 IS BEING ISSUED OR DENIED. THE MECHANISM PROVIDED BY THE STATUTE
FOR BROADER-GAUGED DECISIONS LIKE THAT IS A FINAL DECISION ON THE PERMIT
APPLICATION AS A WHOLE. THE PREAMBLE TO PART 124 SETS FORTH EPA'S
POSITION ON THE PROCEDURES REQUIRED FOR THAT.
RCRA STATES THAT DURING INTERIM STATUS OWNERS AND OPERATORS OF
EXISTING HWM FACILITIES SHALL BE TREATED AS HAVING BEEN ISSUED A PERMIT
UNTIL A FINAL DECISION IS MADE ON THE COMPLETE PERMIT APPLICATION. MANY
COMMENTS WERE RECEIVED ON THIS PROVISION.
(1) DEFINITION OF EXISTING HWM FACILITY. THE PROPOSAL DEFINED AN
EXISTING HWM FACILITY AS A FACILITY WHICH WAS IN OPERATION OR UNDER
CONSTRUCTION ON OR BEFORE THE DATE OF PROMULGATION OF THE RCRA SECTION
3001 REGULATIONS. SOME COMMENTERS STATED THAT INTERIM STATUS SHOULD NOT
APPLY TO OWNERS AND OPERATORS OF FACILITIES UNDER CONSTRUCTION BUT ONLY
TO FACILITIES IN OPERATION. OTHERS INDICATED THAT SECTION 3005(E)
REFERS TO FACILITIES IN EXISTENCE ON THE DATE OF ENACTMENT OF RCRA, NOT
THE DATE OF THE SECTION 3001 REGULATIONS.
EPA NOW AGREES THAT THE LANGUAGE OF THE STATUTE IS CLEAR AND THAT THE
APPROACH PROPOSED IS NOT DEFENSIBLE. ACCORDINGLY, IT HAS CHANGED THE
DEFINITION OF "EXISTING FACILITY" TO MEAN A FACILITY THAT WAS IN
EXISTENCE ON THE DATE OF ENACTMENT OF RCRA, OR OCTOBER 21, 1976.
EPA REGARDS IT AS ALL BUT CERTAIN THAT CONGRESS WILL ACT TO CHANGE
THIS DEFINITION BEFORE THESE REGULAITONS BECOME EFFECTIVE.
AMENDMENTS TO RCRA ARE NOW IN CONFERENCE. THE HOUSE BILL WOULD
CHANGE THE DEFINITION OF "EXISTING FACILITY" TO MEAN ONE THAT IS IN
EXISTENCE ON THE EFFECTIVE DATE OF THE INITIAL RCRA PROMULGATION; THE
SENATE BILL WOULD CHANGE IT TO COVER THOSE IN EXISTENCE ON THE DATE OF
PROMULGATION. INDICATIONS ARE THAT THE CONFEREES ARE CONSIDERING
OCTOBER 30, 1979 AS THE DATE FOR DETERMINING WHEN A FACILITY IS AN
EXISTING FACILITY. BOTH BILLS WOULD THEREFORE PROVIDE RELIEF FROM THE
CONSEQUENCE OF EXISTING LAW.
ACCORDINGLY, EPA ENCOURAGES EVERY FACILITY WHICH WAS BUILT OR UNDER
PHYSICAL CONSTRUCTION AS OF THE PROMULGATION DATE OF THESE REGULATIONS
TO FILE PART A OF ITS PERMIT APPLICATION SO THAT IT CAN BE QUICKLY
PROCESSED FOR INTERIM STATUS WHEN THE CHANGE IN THE LAW TAKES EFFECT. A
"NOTE" TO THIS EFFECT HAS BEEN INSERTED INTO THE REGULATIONS.
DEPENDING ON WHAT FINAL ACTION CONGRESS TAKES, OTHER PROVISIONS OF
THESE REGULATIONS MAY ALSO REQUIRE AMENDMENT. EPA WILL ISSUE ANY
NECESSARY AMENDMENTS AND AN EXPLANATORY PREAMBLE AS SOON AS POSSIBLE
AFTER FINAL CONGRESSIONAL ACTION.
THIS FINAL REGULATION ALSO INTERPRETS AN EXISTING HWM FACILITY TO
MEAN EITHER "A FACILITY IN OPERATION, I.E., RECEIVING HAZARDOUS WASTE
FOR TREATMENT, STORAGE, OR DISPOSAL," OR "A FACILITY FOR WHICH
CONSTRUCTION HAS COMMENCED." THIS DEFINITION HAS BEEN ADOPTED BECAUSE
EPA BELIEVES THAT OWNERS AND OPERATORS WHO HAVE COMMENCED FACILITY
CONSTRUCTION IN GOOD FAITH PRIOR TO THE STATUTORY DATE SHOULD BE
CLASSIFIED AS EXISTING.
THE FINAL REGULATION FURTHER DEFINES THE TERM "COMMENCE CONSTRUCTION"
TO TAKE THE MEANING DEFINED IN EPA'S PREVENTION OF SIGNIFICANT
DETERIORATION (PSD) REGULATIONS ISSUED UNDER THE CLEAN AIR ACT. THESE
REGULATIONS SPECIFY THAT CONSTRUCTION HAS COMMENCED BEFORE THE DATE IN
QUESTION IF.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 034 OF 225
COSTLE DM ADMINISTRATOR
EPA
113533
REGULATIONS
1. THE OWNER AND OPERATOR HAS OBTAINED ALL NECESSARY FEDERAL, STATE,
AND LOCAL PRECONSTRUCTION APPROVALS OR PERMITS; AND
2A. A CONTINUOUS ON-SITE, PHYSICAL CONSTRUCTION PROGRAM HAS BEGUN OR
2B. THE OWNER OR OPERATOR HAS ENTERED INTO CONTRACTUAL OBLIGATINS
WHICH CANNOT BE CANCELLED OR MODIFIED WITHOUT SUBSTANTIAL LOSS FOR
CONSTRUCTION OF THE FACILITY TO BE COMPLETED WITHIN A REASONABLE TIME.
IT IS INTENDED THAT THE CONTINUOUS ON-SITE, PHYSICAL CONSTRUCTION
PROGRAM INCLUDE PHYSICAL SITE PREPARATION. DESIGN AND OTHER
NON-PHYSICAL AND NON-SITE SPECIFIC PREPARATORY ACTIVITIES ALONE WOULD
NOT CONSTITUTE ON-SITE, PHYSICAL CONSTRUCTION. FURTHERMORE IT IS
INTENDED THAT STRUCTURES OR EQUIPMENT CONSTRUCTED FROM A PERMANENT PART
OF THE FACILITY THAT ARE TO BE USED IN ITS OWN OPERATION, AND REPRESENT
A SUBSTANTIAL COMMITMENT TO CONSTRUCTION.
IN GENERAL IF THE AMOUNT AN OWNER OR OPERATOR MUST PAY TO CANCEL
CONSTRUCTION AGREEMENTS OR STOP CONSTRUCTION EXCEEDS 10% OF THE TOTAL
PROJECT SOT, THE LOSS WOULD BE DEEMED "SUBSTANTIAL" OPTIONS TO PURCHASE
OR CONTRACTS FOR FEASIBILITY, ENGINEERING AND DESIGN STUDIES WOULD NOT
CONSTITUTE CONTRACTUAL OBLIGATIONS.
EPA BELIEVES THIS PROVIDES AN EQUITABLE AND REASONABLE APPROACH TO
FACILITIES CONSTRUCTED PRIOR TO THE PROMULGATION OF THE RCRA
REGULATIONS. A SUBSTANTIAL COMMITMENT OF RESOURCES BY OWNERS AND
OPERATORS IN A PERIOD OF UNCERTAINTY TO PROVIDE FOR TREATMENT, STORAGE,
AND DISPOSAL OF HAZARDOUS WASTE WILL NOT BE PENALIZED. ALL FACILITY
CONSTRUCTION COMMENCED AFTER PROMULGATION OF THE NEW RCRA HAZARDOUS
WASTE REGULATIONS WOULD BE SUBJECT TO THE RCRA PERMIT PROCESS.
(2) CHANGES IN THE FACILITY DURING INTERIM STATUS. A NUMBER OF
COMMENTERS RAISED QUESTIONS AS TO WHETHER A FACILITY COULD BE MODIFIED
DURING INTERIM STATUS. COMMENTS STATED THAT FACILITIES SHOULD BE ABLE
TO MAKE SUCH MODIFICATIONS DURING INTERIM STATUS AS ARE: (1) NEEDED TO
KEEP THE FACILITY IN OPERATIONS, (2) NECESSARY IN ORDER TO MEET THE
SECTION 3004 STANDARDS OR (3) NEEDED TO INSURE FULL BENEFICIAL USE OF
THE FACILITY. ON THE OTHER HAND IS THE CONCERN THAT ALLOWING SUCH
CHANGES DURING INTERIM STATUS WOULD PROVIDE A LOOPHOLE TO AVOID THE
REQUIREMENTS FOR OBTAINING A PERMIT (AS WOULD OCCUR IF THE MODIFICATION
OF AN EXISTING HWM FACILITY WAS TANTAMOUNT TO CONSTRUCTION OF A NEW
FACILITY), OR FOR SUBMITTING LESS MAJOR, BUT SIGNIFICANT CHANGES TO A
FACILITY TO THE KIND OF REVIEW AND CROSS-CHECK THAT A FULLY EFFECTIVE
PERMIT WOULD PROVIDE. IN RESPONSE TO THESE COMMENTS THE FINAL
REGULATION SETS FORTH THE FOLLOWING APPROACH TO MAKING CHANGES IN A
FACILITY DURING THE INTERIM STATUS PERIOD.
PART A OF THE PERMIT APPLICATION BASICALLY DEFINES THE PROCESS WHICH
WILL BE USED FOR TREATMENT, STORAGE OR DISPOSAL OF HAZARDOUS WASTES AND
THE HAZARDOUS WASTES TO BE HANDLED AT A FACILITY DURING INTERIM STATUS.
IN ORDER TO MAKE ANY CHANGES IN SUCH ITEMS THE OWNER OR OPERATOR OF THE
FACILITY MUST SUBMIT A REVISED PART A PERMIT APPLICATION AND IN SOME
INSTANCES SUCH CHANGES MUST BE APPROVED BY THE DIRECTOR.
NEW HAZARDOUS WASTES (NOT PREVIOUSLY SPECIFIED ON THE PART A PERMIT
APPLICATION) MAY BE HANDLED IF THE APPLICATION IS REVISED PRIOR TO SUCH
A CHANGE. NO APPROVAL OF THE DIRECTOR IS REQUIRED IN THIS INSTANCE.
FURTHERMORE ADDITIONAL QUANTITIES OF HAZARDOUS WASTE (ALREADY SPECIFIED
ON THE PERMIT APPLICATION) MAY BE HANDLED AT ANY TIME WITHIN THE DESIGN
CAPACITY OF THE FACILITY WITHOUT REVISING THE APPLICATION.
INCREASES IN DESIGN CAPACITY OR CHANGES IN THE PROCESSES USED AT THE
FACILITY MAY ONLY BE MADE UPON SUBMITTAL OF A REVISED APPLICATION AND
WITH DIRECTOR APPROVAL. THE DIRECTOR MAY APPROVE ADDITIONAL PROCESSES
IF HE OR SHE FINDS THAT THEY (1) ARE NECESSARY BECAUSE OF AN EMERGENCY
SITUATION; OR (2) ARE NECESSARY TO COMPLY WITH FEDERAL, STATE OR LOCAL
LAWS. THE DIRECTOR MAY APPROVE INCREASES IN THE DESIGN CAPACITY OF THE
FACILITY IF HE OR SHE FINDS THAT THIS IS NECESSARY BECAUSE OF LACK OF
AVAILABLE CAPACITY AT OTHER FACILITIES. IN ANY OF THESE INSTANCES THE
DIRECTOR MAY INSPECT A FACILITY PRIOR TO OR AFTER SUCH A CHANGE AND MAY
DISAPPROVE A CHANGE THAT WOULD RESULT IN A VIOLATION OF THE INTERIM
STATUS STANDARDS.
CHANGES IN OWNERSHIP AND OPERATIONAL CONTROL OF A FACILITY MAY ONLY
OCCUR DURING THE INTERIM STATUS PERIOD IN ACCORDANCE WITH THE
REQUIREMENTS OF 40 CFR SECTION 265.150. A REVISED PART A PERMIT
APPLICATION IS REQUIRED 90 DAYS PRIOR TO SUCH A CHANGE SO THAT THE
DIRECTOR HAS AN OPPORTUNITY TO DETERMINE WHETHER SUCH REQUIREMENTS ARE
COMPLETED.
FINALLY, EPA WILL PROHIBIT ANY CHANGES TO AN EXISTING FACILITY DURING
INTERIM STATUS WHICH ARE SO EXTENSIVE AS TO AMOUNT TO THE CONSTRUCTION
OF A NEW FACILITY. FAILURE TO DO THIS WOULD ALLOW AVOIDANCE OF THE
REQUIREMENT THAT ALL SOURCES WHICH ARE IN FACT PHYSICALLY NEW GO THROUGH
THE FULL PERMITTING PROCESS BEFORE CONSTRUCTION BEGINS. FOR THIS
PURPOSE EPA HAS ADOPTED THE PRACTICE UNDER THE CLEAN AIR ACT OF
DESIGNATING AS A NEW FACILITY ANY CHANGE THAT WHEN COMPLETED WOULD
AMOUNT TO MORE THAN 50% OF THE CAPITAL VALUE OF THE FACILITY.
THE AGENCY BELIEVES THAT THIS APPROACH TO CHANGES IN A FACILITY
DURING INTERIM STATUS WILL ALLOW REASONABLE MODIFICATIONS IN EXISTING
FACILITIES WITHOUT CREATING A SITUATION IN WHICH THE REQUIREMENTS FOR
OBTAINING A PERMIT ARE NULLIFIED.
EPA BELIEVES THAT THIS APPROACH REPRESENTS A LEGALLY ACCEPTABLE
RESOLUTION TO A QUESTION WHICH THE STATUTE DOES NOT ADDRESS.
NOTHING IN THE STATUTE PROVIDES THAT APPLICANTS ARE BOUND BY THEIR
PART A APPLICATION, ANDIT HAS NEVER BEEN THE PRACTICE WHEN CONGRESS
REQUIRES EXISTING FACILITIES TO COME UNDER PERMITS TO FREEZE THEIR
PRESENT PATTERNS OF OPERATIONS UNTIL FINAL AGENCY ACTION. ANY SUCH RULE
COULD HAVE DRASTIC CONSEQUENCES WHICH CONGRESS PRESUMABLY DID NOT
INTEND, PARTICULARLY SINCE CONGRESS EXPLICITLY RECOGNIZED THAT SEVERAL
YEARS MIGHT BE NECESSARY TO PROCESS ALL RCRA PERMIT APPLICATIONS. IN
ADDITION, THOSE CONSEQUENCES WOULD BE PREDOMINANTLY SUFFERED BY
FACILITIES WHICH, BECAUSE THEY ARE SMALL OR WELL OPERATED, ARE LOW ON
THE PRIORITY LIST OF THE PERMITTING AUTHORITY. TO REQUIRE AFFIRMATIVE
ACTION BEFORE SUCH FACILITIES COULD CHANGE THEIR OPERATIONS WOULD NOT
ONLY BE BURDENSOME ON THEM, BUT WOULD DIVERT THE RESOURCES OF THE
PERMITTING AGENCY TOWARD SUCH FACILITIES AND AWAY FROM MORE URGENT
TASKS.
AT THE SAME TIME, EPA DOES NOT BELIEVE THAT FACILITIES WHICH HAVE NOT
YET RECEIVED A RCRA PERMIT SHOULD BE COMPLETELY FREE OF SPECIFIC
REGULATORY REQUIREMENTS. THE EXISTENCE OF INTERIM STATUS STANDARDS
GROUNDED IN THE STATUTE INDICATE THAT CONGRESS INTENDED SUCH FACILITIES
TO BE SUBJECT TO AT LEAST THE OUTLINES OF THE GENERAL RCRA SCHEME. IN
ADDITION, THE REQUIREMENT TO FILE A PERMIT APPLICATION AS THE PRICE OF
INTERIM STATUS CAN ONLY MEAN THAT THE PERMITTING AGENCY CAN REQUIRE
UPDATING OF THAT APPLICATION IF IT CEASES TO BE ACCURAGE. WHERE THE
UPDATED APPLICATION INDICATED THAT THE FACILITY MIGHT CEASE TO CONFORM
TO THE GENERAL RCRA REGULATORY SCHEME, EPA WOULD BE FREE TO TAKE
ENFORCEMENT ACTION AS THESE REGULATIONS PROVIDE.
(3) COMMENCEMENT AND TERMINATION OF INTERIM STATUS. THE PROPOSAL
PROVIDED THAT INTERIM STATUS BEGAN AT THE TIME THE DIRECTOR ADVISED THE
APPLICANT THAT HIS OR HER PART A APPLICATION HAD BEEN RECEIVED.
COMMENTERS POINTED OUT THAT UNDER SECTION 3005(E) OF RCRA INTERIM STATUS
IS NOT GRANTED BY THE DIRECTOR, BUT BEGINS AT THE TIME AN APPLICATION IS
SUBMITTED (AND AFTER NOTIFICATION UNDER SECTION 3010). EPA AGREES WITH
THIS INTERPRETATION AND DID NOT INTEND A DIFFERENT EFFECT UNDER THESE
REGULAIONS. THE ACKNOWLEDGMENT WAS NOT AN ATTEMPT TO PLACE FURTHER
RESTRICTION ON OR DELAY INTERIM STATUS. HOWEVER, A METHOD IS NECESSARY
TO INSURE THAT THE DIRECTOR AND APPLICANT KNOW THE REQUIRED INFORMATION
HAS BEEN SUBMITTED.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 035 OF 225
COSTLE DM ADMINISTRATOR
EPA
113534
REGULATIONS
EPA HAS REVISED THE PROPOSAL AT SECTION 122.23(A) TO REQUIRE AN
APPLICANT TO EITHER SUBMIT NOTIFICATION AND PART A OF THE APPLICATION BY
CERITIFIED MAIL OR TO HAND DELIVER SUCH INFORMATION TO PROVIDE ASSURANCE
TO BOTH THE APPLICANT AND EPA THAT THE INFORMATION HAS BEEN SENT AND
RECEIVED.
ONE COMMENTER SUGGESTED THAT EPA CONSIDER ADOPTING A DEFINITE DATE
FOR TERMINATION OF ALL INTERIM STATUS. WHEN A PERMIT APPLICATION IS
COMPLETE EPA DOES NOT HAVE THE AUTHORITY TO TERMINATE INTERIM STATUS
SHORT OF THE ADMINISTRATIVE DISPOSITION OF THE PERMIT APPLICATION. THE
TIME PERIOD NECESSARY TO TAKE FINAL ACTION ON ALL PERMITS IS CONTINGENT
UPON THE AVAILABILITY OF RESOURCES. THEREFORE A DEFINITE DATE FOR
TERMINATION OF ALL INTERIM STATUS CANNOT BE ESTABLISHED.
THE COMMENTS RECEIVED ON THIS SECTION ARE DISCUSSED IN THE PREAMBLE
TO THE CONSOLIDATED APPLICATION FORMS, PUBLISHED ELSEWHERE IN TODAY'S
FEDERAL REGISTER.
THE PROPOSED REGULATION IDENTIFIED SIX GENERAL INFORMATIONAL
CATEOGRIES FOR INCLUSION IN PART B OF THE PERMIT APPLICATION. THESE
INCLUDED A MASTER PLAN FOR THE FACILITY WHICH COMBINED ALL OF THE PLANS
REQUIRED BY THE SECTION 3004 FACILITY STANDARDS. ALSO INCLUDED WERE
GEOLOGICAL AND HYDROGEOLOGICAL DATA, A DESCRIPTION OF THE CLIMATE AT THE
SITE, A LIST OF POSITIONS AND JOB DESCRIPTIONS AND A LISTING OF THE
PERFORMANCE BONDS AND OTHER FINANCIAL INSTRUMENTS.
THIS GENERAL APPROACH CREATED SOME CONFUSION BECAUSE THE RELATIONSHIP
BETWEEN THE PROPOSED SECTION 3004 REGULATION AND THE PERMIT APPLICATION
REQUIREMENTS WAS NOT CLEAR. MANY COMMENTERS BELIEVED THAT THEY WERE
REQUIRED TO SUBMIT ALL THE INFORMATION INCLUDED IN EACH CATEGORY. THEY
SUGGESTED THAT THE INFORMATION NEEDS BE LIMITED TO THE TYPE OF FACILITY
(E.G. LANDFILL, INCINERATOR) EPA AGREED WITH THESE COMMENTS AND
RESTRUCTURED THE PART B INFORMATIONAL REQUIREMENTS. THE PART B
APPLICATION REQUIREMENTS NOW PARALLEL THE STRUCTURE OF THE SECTION 3004
STANDARDS PROMULGATED IN PART 264 OF THIS CHAPTER.
ONLY SUBPARTS B THROUGH E OF PART 264 HAVE BEEN PROMULGATED TO DATE.
THIS COVERS REQUIREMENTS WHICH GENERALLY APPLY TO ALL FACILITIES.
SUBSEQUENT SUBPARTS OF PART 264 INCLUDING STANDARDS FOR SPECIFIC
FACILITY TYPES (LANDFILLS, INCINERATORS, ETC.) WILL BE PROMULGATED LATER
THIS YEAR. THE PART B PERMIT APPLICATION REQUIREMENTS BEING PROMULGATED
TODAY ESSENTIALLY PERTAIN TO INFORMATION WHICH IS COMMON TO ALL
HAZARDOUS WASTE FACILITIES AS WELL AS THE SPECIFIC PLANS REQUIRED OF ALL
FACILITIES IN SUBPARTS B THROUGH E OF PART 264. THE PART B APPLICATION
REQUIREMENTS WILL BE AMENDED TO REFLECT ADDITIONAL PLANNING REQUIREMENTS
AND THE TECHNICAL STANDARDS (E.G. EQUIPMENT DESIGN, SITE PREPARATION AND
DESIGN) WHICH WILL BE PROMULGATED IN PART 264 LATER THIS YEAR.
SECTION 122.23 OF THE PROPOSED RULES CONTAINED PROVISIONS FOR THE
DIRECTOR TO WAIVE CERTAIN APPLICATION REQUIREMENTS IN PART B IF THE
INFORMATION WAS NOT APPLICABLE TO THE FACILITY AND WAS NOT NEEDED TO
ESTABLISH COMPLIANCE WITH THE SECTION 3004 STANDARDS. THE AGENCY
RECEIVED NUMEROUS COMMENTS ON THE USE OF THE WAIVER PROVISION. WHILE
THE REORGANIZATION OF THE REGULATION MAY ELIMINATE THE NEED FOR THIS
WAIVER PROVISION, IT IS NOT POSSIBLE TO REACH A FINAL DECISION ON ITS
USE UNTIL THE FULL PART 264 STANDARDS ARE PROMULGATED.
THE PROPOSED REGULATION PROVIDED FOR A PERMIT BY RULE FOR FACILITIES
ACCEPTING SPECIAL WASTES, OCEAN DISPOSAL BARGES AND VESSELS, AND CERTAIN
POTWS. IN THESE INSTANCES APPLICATION FOR A PERMIT WAS NOT REQUIRED AND
AN ACTUAL PERMIT WOULD NOT BE ISSUED. THE OWNER AND OPERATOR OF SUCH A
FACILITY WOULD BE DEEMED TO HAVE A RCRA PERMIT IF CERTAIN SPECIFIC
CONDITIONS IN THE REGULATION WERE COMPLIED WITH. MANY COMMENTS WERE
RECEIVED ON THIS PROVISION.
COMMENTS FROM INDUSTRY GENERALLY APPROVED OF THIS APPROACH, THOUGH
SOME ARGUED THAT LIMITING THE PERMIT BY RULE TO POTWS WAS ARIBTRARY AND
THAT PRIVATELY OWNED TREATMENT WORKS AND NPDES INDUSTRIAL SURFACE
IMPOUNDMENTS SHOULD BE TREATED IN A SIMILAR MANNER. HOWEVER SOME
COMMENTERS STATED THAT THE PERMIT BY RULE IS ILLEGAL UNDER RCRA, AS
SECTION 3005 REQUIRES EACH HWM FACILITY TO HAVE A PERMIT. THESE
COMMENTERS OBJECTED TO THE PERMIT BY RULE APPROACH AS LESS
ENVIRONMENTALLY PROTECTIVE THAN SITE-SPECIFIC PERMITS AND ARGUED THAT
PERMIT BY RULE ELIMINATES PUBLIC NOTICE AND PUBLIC PARTICIPATION AND
THAT EPA AND THE PUBLIC LOSE THE CHANCE TO GAIN INFORMATION ABOUT SUCH
FACILITIES.
ALTHOUGH THE SCOPE OF THE PERMIT BY RULE PROVISIONS HAS BEEN CUT BACK
SUBSTANTIALLY, EPA CONTINUES TO BELIEVE THAT SUCH AS APPROACH IS BOTH
LEGALLY JUSTIFIED AND APPROPRIATE IN CERTAIN CASES. THE COURTS HAVE
INTERPRETED THE CLEAN WATER ACT TO ALLOW THE ISSUANCE OF "GENERAL" OR
"AREA" PERMITS COVERING POINT SOURCES UNDER THAT STATUTE. NATURAL
RESOURCES DEFENSE COUNCIL V. COSTLE, 568 F.2D. 1369, 1361 (D.C. CIR.
1977). THE COURT RECOGNIZED THAT SUCH APPROACHES MIGHT BE THE ONLY WAY
TO FULFILL THE LEGISLATIVE INTENT IN A SETTING OF LIMITED RESOURCES.
YET THE PERMIT PROVISIONS OF THE CLEAN WATER ACT AGAINST WHICH THAT CASE
WAS DECIDED ARE STRONGER THAN THOSE OF RCRA, FOR NOT ONLY DO THEY
AFFIRMATIVELY REQUIRE EVERY "POINT SOURCE" TO HAVE A PERMIT, BUT UNLIKE
RCRA, THEY UNDERLINE THE IMPLICATION THAT SOURCE-BY-SOURCE EXAMINATION
IS REQUIRED BY LIMITING BOTH THE TIME FOR WHICH A PERMIT APPLICATION
WILL BE ACCEPTABLE INSTEAD OF A PERMIT, AND THE MAXIMUM TERM OF THE
PERMIT ONCE ISSUED. IN ADDITION, SECTION 1006 OF RCRA DIRECTS THE
ADMINISTRATOR TO INTEGRATE THE ADMINISTRATION OF THAT STATUTE "TO THE
MAXIMUM EXTENT PRACTICALBE" WITH THE PROVISIONS OF OTHER EPA STATUTES,
INCLUDING THE CLEAN WATER ACT, THE OCEAN DUMPING ACT, AND THE SAFE
DRINKING WATER ACT.
AGAINST THIS BACKGROUND, EPA BELIEVES THAT THERE CAN BE LITTLE
QUESTION OF ITS ABILITY TO ISSUE A PERMIT BY RULE TO FACILITIES WHERE
THE ACTIVITIES THAT A RCRA PERMIT WOULD REGULATE ARE FOR THE MOST PART
ALREADY REGULATED UNDER ANOTHER EPA PERMIT AND THE ONLY PURELY
RCRA-RELATED PROVISIONS ARE THOSE THAT ARE NOT SITE-SPECIFIC AND DO NOT
NEED TO BE PARTICULARIZED IN AN INDIVIDUAL PERMIT. THE CHOICE HERE IS
BETWEEN PREQUIRING A DUPLICATE PERMIT PROCEEDING AND DUPLICATE PAPERWORK
OR SIMPLY MAKING THE MISSING RCRA PROVISIONS APPLICABLE THROUGH A
GENERAL REGULATORY STATEMENT. EPA HAS CHOSEN THE LATTER COURSE.
DESPITE CRITICISM THE PERMIT BY RULE APPROACH HAS BEEN RETAINED FOR
POTWS FOR THE REASONS DISCUSSED ABOVE. THIS PROVISION CAUSED
CONSIDERABLE CONFUSION IN THE PROPOSED REGULATION. PERMIT BY RULE WAS
ONLY TO BE APPLICABLE TO THE RARE SITUATION WHERE A POTW RECEIVED
HAZARDOUS WASTE BY RAIL OR TRUCK OR BY A PIPE THAT DI NOT CARRY SEWAGE
SINCE SEWER LINE INFLUENT TO A POTW WOULD IN MOST INSTANCES BE EXEMPTED
FROM THE RCRA DEFINITION OF SOLID WASTE WHICH INCLUDES DISSOLVED OR
SUSPENDED MATERIALS IN DOMESTIC SEWAGE. MANY COMMENTERS MISUNDERSTOOD
THIS POINT AND ARGUED FOR EXTENDING THE PERMIT BY RULE APPROACH TO A
WIDE VARIETY OF OTHER OPERATIONS SUCH AS PRIVATELY OWNED TREATMENT WORKS
AND NPDES SURFACE IMPOUNDMENTS.
AS EXPLAINED EARLIER AND IN THE SECTION 3001 PREAMBLE, THESE
FACILITIES DO NOT COME UNDER THE SPECIAL CONGRESSIONAL INTENT APPLICABLE
TO POTWS AND THERE IS THEREFORE NO REASON TO EXEMPT THEM FROM OTHERWISE
APPLICABLE RCRA REQUIREMENTS.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 036 OF 225
COSTLE DM ADMINISTRATOR
EPA
113535
REGULATIONS
THE REMAINING USES OF PERMIT BY RULE ARE FOR 1) BARGES OR OTHER
VESSELS FOR OCEAN DISPOSAL OF HAZARDOUS WASTES WITH A PERMIT UNDER THE
MARINE PROTECTION, RESEARCH AND SANCTUARIES ACT AND 2) UNDERGROUND
INJECTION OF HAZARDOUS WASTES WITH A PERMIT UNDER THE UIC PROGRAM OF THE
SAFE DRINKING WATER ACT. BOTH OF THESE SITUATIONS MEET THE CRITERIA FOR
PERMIT BY RULE DESCRIBED PREVIOUSLY. IN BOTH OF THESE CASES THE OWNER
OR OPERATOR IS DEEMED TO HAVE A RCRA PERMIT IF HE OR SHE HAS A VALID
PERMITUNDER THE OTHER PROGRAM, IS IN COMPLIANCE WITH THAT PERMIT AND
ALSO COMPLIES WITH THE RCRA MANIFEST, RECORDKEEPING AND REPORTING
REQUIREMENTS. SHORESIDE FACILITIES RELATED TO OCEAN DISPOSAL ACTIVITIES
AND SURFACE STORAGE AND TREATMENT PRIOR TO UNDERGROUND INJECTION ARE NOT
COVERED BY PERMITS UNDER THESE OTHER STATUTES AND THE RCRA SITE-SPECIFIC
PERMIT REQUIREMENTS APPLY TO THE HANDLING OF HAZARDOUS WASTE AT SUCH
INSTALLATIONS.
OWNERS AND OPERATORS OF FACILITIES WITH A PERMIT BY RULE ARE NOT
REQUIRED TO SUBMIT A RCRA PERMIT APPLICATION. HOWEVER IF AN OWNER OR
OPERATOR OF AN EXISTING UNDERGROUND INJECTION WELL DOES NOT HAVE A UIC
PERMIT HE OR SHE MUST COMPLY WITH THE RCRA NOTIFICATION AND PERMIT
APPLICATION REQUIREMENTS IN ORDER TO QUALIFY FOR INTERIM STATUS.
CONTROL OF UIC WELLS INJECTING HAZARDOUS WASTES. THE RCRA HAZARDOUS
WASTE PERMIT PROGRAM REGULATED THE TREATMENT, STORAGE, AND DISPOSAL OF
HAZARDOUS WASTES. THE UIC PERMIT PROGRAM, GOVERNED BY SUBPART C OF THIS
PART AND PART 123, GOVERNS STATE PROGRAMS REGULATING INJECTION WELLS,
INCLUDING THOSE WHICH DISPOSE OF HAZARDOUS WASTES BY UNDERGROUND
INJECTION. THE TWO PROGRAMS THEREFORE POTENTIALLY OVERLAP, AND COULD
RESULT IN DUPLICATIVE REGULATION OF THE SAME PRACTICES. IN ORDER TO
AVOID THIS, IN THE PROPOSED CONSOLIDATED PERMIT REGULATIONS EPA SOUGHT
TO SET CLEAR JURISDICTIONAL BOUNDARIES FOR THE TWO PROGRAMS SO THAT EACH
WOULD REGULATE THE PRACTICES IT WAS SPECIFICALLY DESIGNED TO CONTROL,
AND DUPLICATION COULD BE ELIMINATED. IN THE MAIN, THESE JURISDICTIONAL
BOUNDARIES ARE RETAINED IN THESE FINAL REGULATIONS, AND ARE DISCUSSED
BELOW.
IN GENERAL, UIC PERMITS WILL BE REQUIRED FOR THE WELL ITSELF, WHILE
RCRA PERMITS WILL BE REQUIRED FOR ASSOCIATED ABOVE-GROUND FACILITIES
WHICH REQUIRE PERMITS UNDER THIS SUBPART -- FOR EXAMPLE, THOSE WHICH
STORE HAZARDOUS WASTES PRIOR TO INJECTION. A NUMBER OF COMMENTERS
OBJECTED TO THIS SCHEME, AND RECOMMENDED THAT THE UIC PROGRAM CONTROL
ALL FACILITIES ASSOCIATED WITH A UIC WELL, EVEN IF SUCH FACILITIES MIGHT
MEET RCRA PERMITTING REQUIREMENTS. EPA REJECTED THIS APPROACH FOR TWO
REASONS. FIRST, THERE IS NO DOUBT THAT EPA HAS AUTHORITY TO REGULATE
SURFACE STORACE FACILITIES UNDER RCRA; IT IS LESS CLEAR THAT SUCH
AUTHORITY EXISTS UNDER THE SDWA. EVEN IF AUTHORITY IS PRESENT UNDER THE
SDWA, THE UIC PROVISIONS OF THE STATUTE ARE ILL-SUITED TO CONTROL RISKS
ASSOCIATED WITH SURFACE FACILITIES, INCLUDING POSSIBLE EXPLOSIONS,
LEAKAGE OF HAZARDOUS WASTE INTO THE ATMOSPHERE, OR SPILLS.
THE FINAL REGULATIONS DEPART FROM THE PROPOSAL IN THAT ALL UIC WELLS
INJECTING HAZARDOUS WASTE WILL FOR AN INTERIM PERIOD BE SUBJECT TO
REGULATION UNDER RCRA. RCRA INERIM STATUS STANDARDS HAVE BEEN REVISED
SO THAT THEY CAN BE APPLIED TO WELLS. THUS, EXISTING UIC HAZARDOUS
WASTE WELLS MUST NOTIFY UNDER RCRA SECTION 3010 AND FILE A PART A
APPLICATION FORM. SUCH WELLS WILL QUALIFY FOR INTERIM STATUS, AND WILL
BE SUBJECT TO INTERIM STATUS STANDARDS LIKE ANY OTHER HWM FACILITY.
EXCEPT AS NOTED BELOW (IN THE DISCUSSION OF NEW SECTION 122.30, "INTERIM
RCRA PERMITS FOR CLASS I WELLS"), RCRA PERMITS WILL NOT BE ISSUED FOR
UIC WELLS INJECTING HAZARDOUS WASTES. WHEN UIC PROGRAMS BECOME
EFFECTIVE, ALL SUCH WELLS WILL EITHER BE ISSUED UIC PERMITS (IN WHICH
CASE THEY WILL QUALIFY FOR THE RCRA PERMIT BY RULE, SECTION 122.26), OR
THEY WILL BE REQUIRED TO SHUT DOWN (SEE, FOR EXAMPLE, SECTION 122.36).
THERE ARE SEVERAL REASONS WHY IT IS NECESSARY TO REQUIRE UIC WELLS TO
OBTAIN INTERIM STATUS AND COMPLY WITH RCRA INTERIM STATUS STANDARDS
DURING THIS PERIOD. PERHAPS MOST IMPORTANT IS THAT, UNDER SECTION 3005
OF RCRA, THESE FACILITIES WILL NOT BE ALLOWED TO RECEIVE HAZARDOUS
WASTES UNLESS THEY HAVE INTERIM STATUS, A RCRA PERMIT, OR A UIC PERMIT
WHICH IN TURN WOULD QUALIFY THEM FOR A RCRA PERMIT BY RULE. MECHANISMS
FOR ISSUING THE UIC PERMITS WILL NOT BE IN PLACE FOR SOME TIME. THUS,
THE ONLY PRACTICAL ALTERNATIVE IS FOR UIC WELLS TO QUALIFY FOR INTERIM
STATUS.
MOREOVER, UNDER THE SDWA, SUBSTANTIVE REGULATIONS DO NOT BECOME
ENFORCEABLE UNTIL THEY ARE INCORPORATED INTO A UIC PROGRAM ADOPTED BY A
STATE OR PROMULGATED BY EPA. STATES ARE ALLOWED 270 DAYS AFTER THE
PROMULGATION OF UIC REGULATIONS TO SUBMIT A PROGRAM, AND THE
ADMINISTRATOR MAY EXTEND THIS PERIOD BY AS MUCH AS ANOTHER 270 DAYS. IF
THE PROGRAM SUBMITTED IS UNACCEPTABLE, EPA MUST PROMULGATE ONE. THIS
COULD TAKE CONSIDERABLE ADDITIONAL TIME, RESULTING IN DELAYS OF PERHAPS
AS MUCH AS TWO YEARS AFTER ISSUANCE OF UIC PROGRAM REGULATIONS BEFORE
EFFECTIVE REGULATION OF INJECTION WELLS BEINGS. EPA SEES NO REASON WHY
WELLS CANNOT BE REGULATED DURING THIS PERIOD UNDER INTERIM STATUS
STANDARDS. THESE STANDARDS ARE SIMPLE, BASIC, AND WILL PROVIDE SOME
MEASURE OF CONTROL. THE REQUIREMENT THAT AN APPLICATION BE SUBMITTED
WILL ALSO ENABLE EPA TO DEVELOP EARLY A COMPLETE INVENTORY OF INJECTION
WELLS DISPOSING OF HAZARDOUS WASTES, FORMING A BASIS FOR PROMPT AND
EFFECTIVE REGULATION OF THE FACILITIES WHEN UIC PROGRAMS ARE IN PLACE.
AMONG OTHER REQUIREMENTS UIC WELLS WITH INTERIM STATUS WILL BE
REQUIRED TO COMPLY WITH THE MANIFEST SYSTEM UNDER 40 CFR PART 265,
SUBPART E WHEN THEY RECEIVE HAZARDOUS WASTES. FAILURE TO IMPOSE
MANIFEST REQUIREMENTS ON THESE FACILITIES WOULD CREATE MAJOR OBSTACLES
TO CARRYING OUT ONE OF THE PRIMARY FUNCTIONS OF THE MANIFEST SYSTEM: TO
TRACK THE MOVEMENT OF HAZARDOUS WASTES FROM GENERATION TO DISPOSAL.
WHEN A FINAL UIC PERMIT IS ISSUED TO A UIC HAZARDOUS WASTE INJECTION
WELL, THE WELL WILL BECOME SUBJECT TO THE GENERAL RCRA PERMIT BY RULE.
THUS, THEY WILL NOT BE REQUIRED TO OBTAIN INDIVIDUAL HWM FACILITY
PERMITS. SECTIONS 122.36 AND 122.45 IDENTIFY THE REQUIREMENTS FOR UIC
PERMITS FOR THESE FACILITIES. MANY OF THE REQUIREMENTS OF ANALOGOUS
RCRA REGULATIONS ARE INCORPORATED IN THEIR ENTIRETY. OTHERS ARE
MODIFIED SO AS TO FIT WELLS, OR ARE NOT APPLICABLE TO WELLS. THE
RESULTING REGULATORY SCHEME PROVIDES, IN EPA'S VIEW, A DEGREE OF CONTROL
WHICH IS EQUIVALENT TO THAT WHICH WOULD BE OBTAINED IF THE FACILITIES
WERE REQUIRED TO OBTAIN INDIVIDUAL PERMITS UNDER RCRA. A MORE DETAILED
DISCUSSION OF THIS ISSUE MAY BE FOUND ELSEWHERE IN THE PREAMBLE TO
SECTION 122.36 AND IN THE PREAMBLE TO SECTION 122.45. THUS, NOTHING
WOULD BE GAINED BY DUAL PERMITTING, AND A PERMIT BY RULE CARRIES OUT THE
PURPOSES OF SECTION 1006(B) OF RCRA, WHICH OBLIGATES EPA TO "AVOID
DUPLICATION, TO THE MAXIMUM EXTENT PRACTICAL, WITH THE APPROPRIATE
PROVISIONS OF. . . THE SAFE DRINKING WATER ACT". . .
SEVERAL COMMENTS WERE RECEIVED ON THE PROPOSED EMERGENCY
AUTHORIZATION PROVISION. IN GENERAL, COMMENTERS SUPPORTED EPA'S
PROPOSAL. SOME COMMENTERS STATED THAT THE 90-DAY LIMIT FOR SUCH
AUTHORIZATION WAS TOO SHORT WHILE ANOTHER COMMENTER STATED THIS ACTION
SHOULD NOT BE LIMITED TO PERMITTED FACILITIES. ANOTHER COMMENTER STATED
THAT THIS PROVISION WAS UNNECESSARY AS EPA HAD AVAILABLE TO IT IMMEDIATE
RELIEF THROUGH COURT ACTION.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 037 OF 225
COSTLE DM ADMINISTRATOR
EPA
113536
REGULATIONS
EPA CONTINUES TO BELIEVE THIS PROVISION IS FULLY JUSTIFIED UNDER THE
STATUTE. THOUGH SECTION 7003 DOES AUTHORIZE A COURT TO GRANT EMERGENCY
RELIEF, THAT REQUIREMENT IS INDEPENDENT OF PERMITTING AUTHORITY UNDER
SECTION 3005 AND IS PROBABLY BETTER ADAPTED TO FORBIDDING CERTAIN ACTS
THAN TO PERMITTING DISPOSAL. THE RIGHT OF THE GOVERNMENT TO TAKE
SUMMARY ADMINISTRATIVE ACTION IN RESPONSE TO AN EMERGENCY IS WELL
RECOGNIZED IN OTHER REGULATORY FIELDS AN IN THE LAW GENERALLY. AS THE
PREAMBLE TO PART 124 EXPLAINS, RCRA SPECIFIES NO EXPLICIT REQUIREMENTS
FORISSUING A PERMIT, EPA BELIEVES THAT READING THE GENERAL RCRA LANGUAGE
OT ALLOW SUMMARY ACTION IN A LIMITED AND URGENT CATEGORY OF CASES IS THE
INTERPRETATION THAT BEST CARRIES OUT THE OVERALL INTENT OF THE
LEGISLATION TO PROTECT PUBLIC HEALTH AND THE ENVIRONMENT.
THIS PROVISION HAS BEEN EXTENDED TO INCLUDE FACILITIES THAT DO NOT
HAVE A PERMIT; HOWEVER EPA CONTINUES TO BE CONSERVATIVE IN DEFINING THE
SCOPE OF THIS EXEMPTION TO PREVENT THE POSSIBILITY OF ABUSE,
PARTICULARLY WHILE THE PROGRAM IS STILL SO NEW, AND TO RESTRICT THE
NUMBER OF CASES IN WHICH REGULATORY ACTION WILL BE TAKEN WITHOUT AN
OPPORTUNITY FOR PUBLIC OCMMENT.
NUMEROUS COMMENTS WERE RECEIVED ON THE PROPOSED RCRA PERMIT
CONDITIONS (PROPOSED SECTION 122.24). MANY OF THE COMMENTS WERE IN FACT
COMMENTS ON THE CROSS-REFERENCES TO THE RCRA SECTION 3004 REGULATIONS.
THESE COMMENTS WERE RECEIVED AFTER THE CLOSE OF THE COMMENT PERIOD FOR
THAT PARTICULAR REGULATION AND ARE NOT GERMANE TO PART 122 SUBPART B.
TO THE EXTENT THOSE COMENTS WERE MADE DURING THE COMMENT PERIOD FOR THE
SECTION 3004 REGULATIONS, THEY WERE CONSIDERED AS PART OF THE RULEMAKING
FOR THAT REGULATION
COMMENTERS INTERPRETED THE PROPOSED PERMIT CONDITIONS, SECTION
122.24(E), TO MEAN THAT AN ENTIRE FACILITY MUST BE CONSTRUCTED OR
MODIFIED BEFORE ANY GIVEN PART OF THAT FACILITY COULD BE OPERATED, OR
THAT AN ENTIRE FACILITY MUST BE CLOSED WHILE PART OF THE FACILITY IS
BEING MODIFIED. EPA'S INTENT WAS THAT ONLY THOSE PORTIONS OF A FACILITY
AFFECTED BY MODIFICATIONS WOULD BE COVERED BY THIS REQUIREMENT. THE
REGULATIONS HAVE BEEN REVISED SO THAT THIS INTENT IS EXPLICIT (FINAL
SECTION 122.28(C)). THE PROVISION ALSO ALLOWS FOR PHASED CONSTRUCTION
AND OPERATION OF A FACILITY OVER TIME IF THE EXISTING PARTS CAN OPRATE
ALONE AND IN COMPLIANCE WITH THE PERMIT REQUIREMENTS.
SEVERAL COMMENTERS OBJECTED TO THE REQUIREMENT THAT AN ENGINEER
REGISTERED IN THE STATE IN WHICH THE FACILITY IS LOCATED CERTIFY THAT
THE FACILITY HAS BEEN CONSTRUCTED OR MODIFIED IN COMPLIANCE WITH THE
PERMIT. SOME COMMENTERS ARGUED THAT THIS REQUIREMENT IS TOO RESTRICTIVE
FOR FEDERAL FACILITIES. OTHER COMMENTERS ARGUED THIS REQUIREMENT IS NOT
NECESSARY AS MOST STATES HAVE RECIPROCITY AGREEMENTS FOR REGISTERED
ENGINEERS. EPA AGREES THAT REQUIRING AN ENGINEER TO BE REGISTERED IN
THE STATE IN WHICH THE FACILITY IS LOCATED IS OVERLY RESTRICTIVE AND THE
REGULATION HAS BEEN CHANGED. CERTIFICATION BY A "REGISTERED
PROFESSIONAL ENGINEER" IS STILL REQUIRED BECAUSE A CERTAIN LEVEL OF
EXPERTISE IS REQUIED TO CERTIFY COMPLIANCE WITH PERMITS.
NUMEROUS COMMENTERS STATED THAT A TIME LIMIT SHOULD BE PLACED ON THE
DIRECTOR TO INSPECT A COMPLETED FACILITY. SUGGESTIONS OF 10 DAYS AND 30
DAYS WERE OFFERED. MOST COMMENTERS EXPRESSED CONCERN THAT THE DIRECTOR
COULD UNDULY DELAY START-UP OF A FACILITY BY NOT ACTING PROMPTLY IN THIS
REGARD. EPA HAS RESTRUCTURED THE REGULATION TO HELP ALLEVIATE THIS
PROBLEM. IF THE DIRECTOR DOES NOT NOTIFY THE APPLICANT OF HIS OR HER
INTENT TO INSPECT WITHIN 15 DAYS OF THE RECEIPT OF CERTIFICATION, HE OR
SHE WAIVES THE RIGHT TO PRIOR INSPECTION, AND AUTHORIZATION TO COMMENCE
OPERATIONS IS AUTOMATICALLY GRANTED.
ANOTHER COMMENTER STATED THAT EPA HAD NOT PROVIDED A STANDARD TO BE
APPLIED BY THE DIRECTOR TO DETERMINE WHETHER OPERATION SHULD BEGIN. THE
REGULATION NOW PROVIDES THAT THE DIRECTOR SHALL AUTHORIZE COMMENCEMENT
OF OPERATION IF HE OR SHE FINDS THE FACILITY IS IN COMPLIANCE WITH THE
CONDITIONS OF THE PERMIT.
SEVERL COMMENTERS ALSO OBJECTED TO THE PROPOSED REQUIREMENT (SECTION
122.24(B)) WHICH ALLOWED THE DIRECTOR TO ESTABLISH PERMIT REQUIREMENTS
AS NECESSARY TO PROTECT HUMAN HEALTH AND THE ENVIRONMENT. COMMENTERS
THOUGHT THIS PROVISION ALLOWED THE DIRECTOR TOO MUCH DISCRETION AND
WOULD LEAD TO IMPOSITION OF CONDITIONS UNRELATED TO RCRA. EPA AGREES
THAT THIS PROVISION IS UNNECESSARY AND HAS DELETED IT. HOWEVER, AS THE
PREAMBLE TO THE SECTION 3004 REGULATIONS EXPLAINS, IN MANY CASES THE
PERMIT WRITER WILL HAVE TO EXERCISE CONSIDERABLE DISCRETION TO ADAPT THE
REQUIREMENTS OF GENERAL REGULATORY PROVISIONS TO A SPECIFIC PERMIT. SEE
ALSO SECTION 122.8 AND ACCOMPANYING PREAMBLE.
SEVERAL STATE AGENCIES COMMENTED THAT IN ORDER TO REDUCE PAPERWORK
PERMITS SHOULD INCORPORATE SPECIFIC PERMIT CONDITIONS BY REFERENCING
APPROPRIATE SECTIONS OF FEDERAL REGULATIONS RATHER THAN LIST EACH
CONDITION IN ITS ENTIRETY. THE REGULATIONS ACCOMMODATE THIS (SEE
SECTION 122.7).
THERE IS AN ADDITIONAL RESPECT IN WHICH THESE REGULATIONS MUST BE
HARMONIZED WITH THOSE FOR UIC PERMITS. RCRA PROHIBITS THE DISPOSAL OF
HAZARDOUS WASTES EXCEPT IN A RCRA PERMITED FACILITY. THIS PROHIBITION
WILL TAKE EFFECT THIS FALL, WHEN THE SECOND PHASE OF RCRA REGULATIONS,
INCLUDING TECHNICAL STANDARDS FOR HWM FACILITIES, IS PUBLISHED. UIC
CLASS I AND CLASS IV WELLS WITH INTERIM STATUS MAY CONTINUE TO OPERATE.
NEW UIC CLASS I WELLS AND CALSS IV WELLS WILL BE PROHIBITED BY RCRA FROM
ACCEPTING HAZARDOUS WASTE FOR DISPOSAL BECAUSE ONLY EXISTING FACILITIES
QUALIFY FOR INTERIM STATUS (UNDER SECTION 3005(E) OF RCRA). (SEE
SECTION 122.32 FOR A DISCUSSION OF HOW INJECTION WELLS ARE CLASSIFIED
UNDER UIC.) IF THESE WELLS ARE PERMITTED UNDER UIC, THEY WILL BE COVERED
BY A RCRA PERMIT BY RULE (SECTION 122.26). HOWEVER, MANY STATES MAY
REQUIRE AS MUCH AS A YEAR AFTER THE RCRA PROHIBITION TAKES EFFECT TO
DEVELOP AND SUBMIT A UIC PROGRAM. UNTIL THEN, THERE WILL BE NO UIC
PROGRAM AND THEREFORE NO AUTHORITY TO PERMIT NEW CALSS I WELLS (OR CLASS
IV WELLS, IF EPA DECIDES TO ALLOW THEM TO BE PERMITTED). THUS, EPA
COULD INADVERTENTLY CREATE A MORATORIUM ON THE CONSTRUCTION OF NEW CLASS
I WELLS WHICH COULD LAST TWO OR MORE YEARS. BECAUSE THESE WELLS ARE, IN
SOME CASES, THE PREFERRED METHOD OF DISPOSAL OF HAZARDOUS WASTE, EPA
BELIEVES THIS RESULT IS UNDESIRABLE.
ACCORDINGLY, EPA INTENDS TO ISSUE STANDARDS UNDER RCRA SECTION 3004
WHICH WOULD ALLOW EPA OR APPROVED STATES TO ISSUE RCRA PERMITS TO NEW
HAZARDOUS WASTE INJECTION WELLS. SUCH STANDARDS WOULD BE PATTERNED
CLOSELY ON 40 CFR PART 146, SO THAT WELLS WOULD NOT BE SUBJECT TO
POSSIBLE NEW OR INCONSISTENT CONSTRUCTION AND OPERATION REQUIREMENTS AS
THEIR RCRA PERMITS EXPIRE AND THEY COME UNDER REGULATION UNDER THE UIC
PROGRAM.
THE ACTUAL ISSUANCE OF THE PERMITS INVOLVED CAN BE DONE EITHER BY EPA
REGIONAL ADMINISTRATORS OR BY THE STATES. AT THEIR OPTION, STATES MAY
ASSUME, UNDER SECTION 3006 OF RCRA AND 40 CFR PART 123, PERMITTING
AUTHORITY FOR CLASS I WELLS DURING THE PERIOD AFTER THE RCRA PERMIT
REQUIREMENT GOES INTO EFFECT, BUT PRIOR TO APPROVAL OR PROMULGATION OF A
UIC PROGRAM IN THE STATE. ACCORDINGLY, STATES MAY APPLY TO EPA FOR
APPROVAL TO ISSUE PERMITS UNDER RCRA TO CLASS I WELLS, AS PART OF THEIR
APPLICATIONS EITHER FOR INTERIM OR FINAL AUTHORIZATION.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 038 OF 225
COSTLE DM ADMINISTRATOR
EPA
113537
REGULATIONS
THE TECHNICAL STANDARDS FOR SUCH PERMITS WILL BE ISSUED THIS FALL AT
THE SAME TIME AS THE OTHER RCRA TECHNICAL STANDARDS, AND WILL BE CLOSELY
MODELED UPON 40 CFR PART 146, THE TECHNICAL STANDARDS FOR UIC PERMITS.
BECAUSE EPA CONTINUES TO VIEW THE UIC PROGRAM AS THE MOST EFFECTIVE
VEHICLE FOR REGULATION OF UNDERGROUND INJECTION, THE PERMITS WILL BE
LIMITED IN DURATION TO NOT MORE THAN TWO YEARS. AT THE END OF THE TWO
YEAR PERIOD, EITHER THE STATE WILL HAVE AN APPROVED UIC PROGRAM OR EPA
WILL HAVE PROMULGATED ONE UNDER THE SDWA.
THE REGIONAL ADMINISTRATOR WILL HAVE AUTHORITY TO ISSUE RCRA PERMITS
TO UIC FACILITIES UNDER THE SAME CONDITIONS IN THE EVENT THAT THE STATE
DIRECTOR DOES NOT SEEK AUTHORITY TO ISSUE THEM. EPA DOES NOT ANTICIPATE
THAT IT WILL BE ASKED TO ISSUE SUCH PERMITS EXCEPT IN A VERY FEW CASES.
THE TOTAL NUMBER OF CLASS I UIC WELLS IS SMALL -- ABOUT 400 -- AND HAS
GROWN AT A SLOW RATE.
CLASS IV WELLS ARE CONTINUING TO BE STUDIED IN CONNECTION WITH THE
REQUEST FOR COMMENTS ON CLASS IV UIC WELLS (SEE PREAMBLE DISCUSSION OF
SECTIONS 122.36 AND 122.45). EPA WILL ANNOUNCE TREATMENT OF THESE WELLS
THIS FALL AT THE COMPLETION OF CONSIDERATION OF COMMENTS.
PROPOSED SECTION 122.25(A), HEALTH CARE FACILITY PERMITS. THE
PROVISIONS FOR SPECIAL PERMITS FOR HEALTH CARE FACILITIES HAVE BEEN
DELETED. THE SECTION 3001 REGULATIONS DO NOT INCLUDE INFECTIOUS WASTE
AT PRESENT AND THE SECTION 3004 REGULATION DOES NOT HAVE SPECIFIC
STANDARDS FOR THE TREATMENT, STORAGE OR DISPOSAL OF INFECTIOUS WASTE.
IF FUTURE VERSIONS OF THESE REGULATIONS COVER INFECTIOUS WASTE THE
PERMIT REQUIREMENTS CAN BE REVISED IF NECESSARY.
PROPOSED SECTION 122.25(B), EXPERIMENTAL PERMITS. AS PROPOSED, RCRA
PERMITS WERE NORMALLY TO BE ISSUED FOR THE DESIGNED LIFE OF THE FACILITY
AND EXPERIMENTAL SPECIAL PERMITS WERE TO BE ISSUED FOR UP TO ONE YEAR
WITH A ONE YEAR MAXIMUM EXTENSION. BECAUSE EPA WILL NOW ISSUE RCRA
PERMITS ONLY FOR UP TO TEN YEARS, AND PERMITS CAN BE LIMITED TO ONE YEAR
IF NECESSARY, THE EXPERIMENTAL PERMITS SECTION HAS BEEN DELETED.
PROPOSED SECTION 122.27, REPORTING REQUIREMENTS. COMMENTS SUGGESTED
THAT THE REPORTING REQUIREMENTS UNDER THIS SECTION BE REVIEWED TO
DETERMINE IF LESS STRINGENT REQUIREMENTS WOULD SUFFICE. EPA HAS DONE
THIS AND HAS REDUCED THE REQUIREMENTS TO THE MINIMUM IT NOW ESTIMATES
ARE NECESSARY TO CARRY OUT THE RCRA PROGRAM IN AN ADEQUATE AND
RESPONSIBLE WAY. SINCE THE PROGRAM HAS NOT STARTED YET, ANY ESTIMATE OF
THE REPORTING NEEDS IS LIKELY TO REQUIRE REVISION IN THE LIGHT OF
EXPERIENCE, AND EPA WILL RE-EXAMINE THESE REQUIREMENTS ONCE THE PROGRAM
HAS A SUFFICIENT DEGREE OF OPERATING HISTORY BEHIND IT. ALL RCRA
REPORTING REQUIREMENTS FOR PERMITTING AGENCIES ARE NOW CONTAINED IN
SECTION 122.18.
THESE REGULATIONS IN PART ESTABLISH PROGRAM REQUIREMENTS FOR STATE
UNDERGROUND INJECTION CONTROL PROGRAMS UNDER THE SAFE DRINKING WATER
ACT. HOWEVER, NOT ALL THE REGULATIONS CALLED FOR UNDER SECTION 1421 OF
THAT ACT A-PEAR IN THESE CONSOLIDATED PERMIT REGULATIONS. THE TECHNICAL
REQUIREMENTS FOR STATE UIC PROGRAMS WILL APPEAR SEPARATELY AS PART 146.
THE AGENCY EXPECTS TO PUBLISH PART 146 REGULATIONS WITHIN A MONTH.
THE SDWA REQUIRES ANY STATE LISTED UNDER SECTION 1422 OF THAT ACT TO
SUBMIT A UIC PROGRAM FOR APPROVAL WITHIN 270 DAYS AFTER "PROMULGATION OF
ANY REGULATION UNDER SECTION 1421. . ." THE ADMINISTRATOR MAY GRANT A
270 DAY EXTENSION, EPA BELIEVES, HOWEVER, THAT IT WOULD BE INAPPROPRIATE
FOR STATES TO BE SUBJECT TO A STATUTORY DEADLINE FOR PREPARING AND
SUBMITTING PROGRAMS WHEN MANY OF THE NECESSARY REQUIREMENTS FOR THE
PROGRAMS HAVE NOT YET BEEN ISSUED. THE STATUTE DOES NOT SPECIFY WHEN
"PROMULGATION" TAKES PLACE. ACCORDINGLY, TO AVOID CONFUSION, EPA IS
FIXING THE DATE OF "PROMULGATION" OF PART 122, 123, AND 124, TO THE
EXTENT THAT THEY ESTABLISH UIC PROGRAM REQUIREMENTS, TO THE EFFECTIVE
DATE OF THE 40 CFR PART 146 REGULATIONS. THIS EFFECTIVE DATE WILL BE 30
DAYS AFTER THE PUBLICATION IN THE FEDERAL-REGISTER OF REGULATIONS UNDER
PART 146.
THIS IS INTENDED TO BE AN INTRODUCTORY OR "ROADMAP" SECTION
CORRESPONDING TO SECTIONS WHICH HAVE BEEN ADDED TO SUBPARTS A, B, AND D.
ONE GOAL OF THIS SECTION IS TO CLARIFY THE CONNECTION BETWEEN THE
PROPOSED PROCESS FOR "IDENTIFICATION" AND THE REGULATORY REQUIREMENTS
DESIGNED TO PROTECT UNDERGROUND SOURCES OF DRINKING WATER (USDWS). THE
SECTION NOW EMPHASIZES THE FACT THAT USDWS ARE TO BE PROTECTED
REGARDLESS OF WHETHER THEY HAVE BEEN ACCURATELY MAPPED OR OTHERWISE
IDENTIFIED. MAPPING OR OTHERWISE IDENTIFYING USDWS WILL AID THE
DIRECTOR IN FULFILLING THIS REQUIREMENT.
THE DIRECTOR MAY ALSO IDENTIFY "EXEMPTED AQUIFERS" USING CRITERIA IN
PART 146. SUCH AQUIFERS ARE THOSE WHICH WOULD OTHERWISE QUALIFY AS
"UNDERGROUND SOURCES OF DRINKING WATER" TO BE PROTECTED, BUT WHICH HAVE
NO REAL POTENTIAL TO BE USED AS DRINKING WATER SOURCES. EXEMPTED
AQUIFERS ARE TREATED AS EXEMPT ONLY IF THEY HAVE BEEN AFFIRMATVIELY
IDENTIFIED AS "EXEMPTED AQUIFERS" BY THE DIRECTOR IN THE UIC PROGRAM FOR
THE STATE.
THIS SECTION ALSO CONTAINS A LIST OF "SPECIFIC INCLUSIONS" AND
"SPECIFIC EXCLSUIONS" PARALLEL TO SIMILAR LISTS IN THE OTHER SUBPARTS OF
PART 122. THESE LISTS ARE DESIGNED TO GIVE READERS A QUICK INDICTION OF
WHETHER THEIR FACILITIES COME WITHIN THE SCOPE OF THE UIC PROGRAM.
THESE INCLUSIONS AND EXCLUSIONS ARE NOT EXHAUSTIVE, BUT ILLUSTRATIVE.
THE LANGUAGE OF THE REGULATIONS MUST BE PAPLIED TO DETERMINE WHETHER THE
PROGRAM APPLIES TO A PARTICULAR ACTIVITY.
SEPTIC TANKS OR CESSPOOLS USED TO DISPOSE OF HAZARDOUS WASTES HAVE
BEEN SPECIFICALLY INCLUDED WITHIN THE DEFINTION OF AN INJECTION WELL.
IN HOUSE REPORT NO. 93-1185 (PAGE 31) CONGRESS SPECIFICALLY EXPRESSED
ITS INTENTIONS THAT EPA INCLUDE UNDERGROUND INJECTION SYSTEMS "OTHER
THAN INDIVIDUAL RESIDENTIAL WASTE DISPOSAL SYSTEMS" WHEN THEY ARE USED
TO INJECT CONTAMINANTS, INCLUDING HAZARDOUS WASTE.
SEVERAL COMMENTERS QUESTIONED WHETHER EPA SHOULD IMPOSE THE SAME
MONITORING, REPORTING, CONSTRUCTION AND OPERATING REQUIREMENTS FOR
INJECTION WELLS SITES IN AREAS WITHOUT ANY USDW TO BE PROTECTED AS IT
DOES IN AREAS WITH ONE OR MORE USDW. ONE COMMENTER QUESTIONED EPA'S
LEGAL AUTHORITY TO CONTROL WELLS LOCATED OUTSIDE STATE TERRITORIAL
WATERS. SEVERAL ADDITIONAL COMMENTERS ASKED EPA TO CLARIFY THE SCOPE OF
COVERAGE. EPA AGREES THAT THE UIC PROGRAM IS A STATE PROGRAM AND IS NOT
APPLICABLE TO INJECTION WELLS, LOCATED OUTSIDE STATE TERRITORIAL WATERS
(I.E., TO INJECTION WELLS AT PLATFORMS LOCATED ON THE OUTER CONTINENTAL
SHELF). A SPECIFIC PROVISION TO THIS EFFECT HAS BEEN ADDED TO SECTION
122.31(D).
SECTION 122.43 HAS BEEN ADDED TO ALLOW THE DIRECTOR DISCRETION IN
REDUCING REGULATORY REQUIREMENTS UNDER CERTAIN CIRCUMSTANCES.
IN THE PROPOSAL, EPA EXEMPTED DRILLING MUDS AND CEMENT FROM THE
PROGRAM, BECAUSE THE AGENCY DID NOT IMPOSE REQUIREMENTS PRIOR TO
OPERATION. SINCE PRECONSTRUCTION PERMITS ARE NOW REQUIRED, THIS
EXEMPTION HAS BEEN DELETED. WHEN UIC PERMITS ARE ISSUED, THEY SHOULD
ROUTINELY AUTHORIZE EMPLACEMENT OF THESE MATERIALS.
IN RESPONSE TO SEVERAL COMMENTS THE DEFINITION OF CLASS I WELLS
(OTHER THAN HAZARDOUS WASTE WELLS) HAS BEEN LIMITED TO INCLUDE ONLY
THOSE WELLS INJECTING BENEATH FORMATIONS WHICH CONTAIN USDWS WITHIN ONE
QUARTER MILE OF THE WELL SITE.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 039 OF 225
COSTLE DM ADMINISTRATOR
EPA
113538
REGULATIONS
INDIVIDUAL FORMATIONS ARE OFTEN IDENTIFIABLE FOR HUNDREDS OF MILES
AND A FORMATION MAY BE SUITABLE IN ONE AREA AS A SOURCE OF DRINKING
WATER YET NOT IN ANOTHER. THE LIMITATION PREVENTS A WELL FROM BEING
SUBJECTED TO CLASS I REQUIREMENTS SIMPLY BECAUSE IT INJECTS UNDER AN
AQUIFER WHICH, MILES AWAY, CONTAINS DRINKING WATER. SUCH A WELL WOULD
NOW BE TREATED AS CLASS V. CLASS I WILL ALSO NOW INCLUDE ALL WELLS
INJECTING HAZARDOUS WASTES OTHER THAN CLASS IV WELLS.
EPA PROPOSED TO CLASSIFY WELLS DISPOSING OF "NUCLEAR" WASTES IN
EITHER CLASS I OR CLASS IV, BUT DID NOT DEFINE THE TERM IN THE PROPOSAL.
FEW COMMENTERS ADDRESSED THIS ASPECT OF THE PROPOSAL, ALTHOUGH SOME
OBJECTED TO GRANTING STATES AUTHORITY OVER THESE SOURCES. THE PRESIDENT
OF FEBRUARY 12, 1970, ISSUED AN EXECUTIVE ORDER OUTLINING A PROGRAM TO
ARRIVE AT A COMPREHENSIVE RADIOACTIVE WASTE MANAGEMENT PROGRAM. UNTIL
THIS PROGRAM IS COMPLETE, AND EPA HAS HAD AN OPPORTUNITY FOR FULL
CONSULTATIONS WITH THE NUCLEAR REGULATORY COMMISSION, THE DEPARTMENT OF
ENERGY, AND OTHER AGENCIES WITH RESPONSIBILITIES POTENTIALLY AFFECTING
RADIOACTIVE WASTES, IT WOULD BE PREMATURE FOR EPA TO ISSUE REGULATIONS
CONCERNING THE DISPOSAL OF RADIOACTIVE WASTES INTO CLASS I WELLS.
MOREOVER, EPA WISHES TO COORDINATE ANY REGULATIONS GOVERNING SAND
BACKFILL WELLS WITH REGULATORY MEASURES IT MAY UNDERTAKE UNDER THE
URANIUM MILL TAILINGS ACT. ACCORDINGLY, EPA HAS MODIFIED THE
CLASSIFICATION OF WELLS SO THAT WELLS DISPOSING OF RADIOACTIVE WASTES
BELOW STRATA CONTAINING A USDW WILL BE CLASS V WELLS.
HOWEVER, THE DISPOSAL OF RADIOACTIVE WASTES INTO OR ABOVE USDWS IS AN
ENVIRONMENTALLY UNDESIRABLE PRACTICE. THEREFORE, EPA HAS ADDED A
DEFINITION OF "RADIOACTIVE WASTE" IN SECTION 122.3 WHICH CLARIFIES THAT
THE TERM "NUCLEAR" WASTE USED IN THE PROPOSAL WAS INTENDED TO COVER NOT
ONLY THE RADIOACTIVE WASTES WHICH ARE HAZARDOUS WASTES UNDER RCRA BUT
ALSO FISSION BY-PRODUCTS AND SIMILAR WASTES COVERED UNDER THE ATOMIC
ENERGY ACT OF 1954. THE DISPOSAL OF ALL SUCH WASTES INTO OR ABOVE USDWS
IS INCLUDED IN CLASS IV AND WILL BE REGULATED ACCORDING TO THE SCHEME
PROMULGATED HERE FOR CLASS IV WELLS; THOSE CLASS IV WELLS INJECTING
INTO A USDW ARE PROHIBITED; REQUIREMENTS FOR OTHER CLASS IV WELLS WILL
BE PROMULGATED IN THE FALL OF THIS YEAR. (SEE THE DISCUSSION OF CLASS
IV REQUIREMENTS BELOW.)
A LARGE NUMBER OF COMMENTERS QUESTIONED THE NEED FOR REGULATIONS
GOVERNING CLASS II OIL AND GAS WELLS. MANY FELT THAT EXISTING STATE
PROGRAMS ARE ADEQUATE AND MANY QUESTIONED THE LEGALITY OF FEDERAL
REQUIREMENTS CITING THE SDWA'S PROHIBITION AGAINST INTERFERING WITH OR
IMPEDING OIL OR NATURAL GAS PRODUCTION.
CLASS II WELLS STILL INCLUDE ALL THOSE COVERED BY THE PROPOSAL EXCEPT
THOSE INJECTING NATURAL OR SYNTHETIC GAS. HOWEVER, THERE ARE MANY
FEATURES OF THESE REGULATIONS WHICH ARE DESIGNED TO PREVENT INCLUSION IN
THE UIC PROGRAM FROM BEING UNDULY BURDENSOME. THESE INCLUDE PERMITTING
BY RULE FOR EXISTING CLASS II WELLS FOR THE LIFE OF THE WELL;
ADDITIONAL TIME (THREE YEARS) FOR COMPLIANCE WITH CONSTRUCTION
REQUIREMENTS; AREA PERMITTING FOR ENTIRE WELL FIELDS AND ALLOWING FOR
NEW ENHANCED RECOVERY WELLS COVERED BY EXISTING AREA PERMITS TO BE
INSTALLED PRIOR TO NOTICE TO THE DIRECTOR; AND ELIMINATION OF THE AREA
OF REVIEW AND CORRECTIVE ACTION REQUIREMENTS FOR EXISTING CLASS II
WELLS. THOSE PART 146 REQUIREMENTS FOR CLASS II WELLS WHICH ARE
POTENTIALLY BURDENSOME ARE WRITTEN WITH FLEXIBILITY. OTHERS, FOR
EXAMPLE MONITORING AND REPORTING, ARE NOT BURDENSOME ENOUGH TO CAUSE
INTERFERENCE WITH OIL AND GAS PRODUCTION.
THE HYDROCARBON STORAGE INDUSTRY ARGUED THAT: (1) THE UNDERGROUND
STORAGE OF NATURAL GAS DOES NOT MEET THE STATUTORY REQUIREMENT FOR
UNDERGROUND INJECTION BECAUSE IT IS STORED AND NOT DISPOSED OF; (2)
CONGRESS DID NOT INTEND FOR EPA TO REGULATE THE STORAGE OF NATURAL GAS;
AND (3) NATURAL GAS IS NOT A "CONTAMINANT." IN BOTH THE SDWA AND THE
1977 AMENDMENT TO THE ACT THE TERM "UNDERGROUND INJECTION" MEANS THE
"SUBSURFACE EMPLACEMENT OF FLUIDS BY WELL INJECTION." NATURAL GAS IS A
FLUID WHICH IS EMPLACED INTO AN UNDERGROUND FORMATION OR RESERVOIR FOR
THE PURPOSE OF STORAGE BY WELL INJECTION.
THE HOUSE COMMITTEE REPORT (H.R. REPORT 93-1185, PAGE 31) INDICATES
THAT THE COMMITTEE DECIDED TO INCLUDE NATURAL GAS UNDER THE DEFINITION
OF A FLUID. THE TERM "FLUID" IS DEFINED IN BOTH THIS DOCUMENT AND IN
THE APRIL 20, 1979 PROPOSED PART 146 REGULATIONS (44 FR 34270) AS A
"MATERIAL OR SUBSTANCE WHICH FLOWS OR OR MOVES WHETHER SEMISOLID,
LIQUID, SLUDGE OR ANY OTHER FORM OR STATE."
THE DSWA DEFINES "CONTAMINANT" BROADLY AS "ANY PHYSICAL, CHEMICAL,
BIOLOGICAL, OR RADIOLOGICAL SUBSTANCE OR MATTER IN WATER." (SECTION
1401(6).)
EVEN THOUGH EPA BELIEVES NATURAL GAS IS CLEARLY SUBJECT TO THE ACT'S
REGULATORY SCOPE, EPA BELIEVES THAT THE COMMENTERS ARE CORRECT INSOFAR
AS THEY MAKE A TECHNICAL ARGUMENT THAT UNDERGROUND STORAGE OF NATURAL
GAS POSES NO THREAT TO USDWS IN THE VAST MAJORITY OF CASES AND THAT
INHERENT ECONOMIC REASONS COMPEL OPERATORS ON THEIR OWN INITIATIVE TO
EMPLOY STRINGENT TECHNICAL CONTROLS TO PREVENT LOSS OF AN EXTREMELY
VALUABLE RESOURCE. HOWEVER, THE AGENCY DOES HAVE SOME CONCERN THAT
NATURAL GAS STORAGE COULD DISPLACE FORMATION FLUIDS INTO A USDW.
ACCORDINGLY, THIS SECTION HAS BEEN MODIFIED SO AS TO CLASSIFY THE
UNDERGROUND STORAGE OF NATURAL GAS AND OTHER GASEOUS HYDROCARBONS WITHIN
CLASS V. AS SUCH THEY WILL BE AUTHORIZED BY RULE AND SUBJECT TO
ASSESSMENT BY THE DIRECTOR AND ANY FURTHER REGULATORY REQUIREMENTS THAT
MAY BE FASHIONED IN THE FUTURE. IN THE INTERIM, THE DIRECTOR WILL HAVE
AUTHORITY TO TAKE ACTION AGAINST SUCH WELLS, INCLUDING REQUIRING THEM TO
GET A PERMIT, IN THOSE CASES WHERE IT IS NECESSARY, SEE SECTION
122.37(C). UNDERGROUND STORAGE OF LIQUID HYDROCARBONS (GASOLINE, CRUDE
PETROLEUM, AND OTHERS) WILL REMAIN IN CLASS II. THESE HYDROCARBONS HAVE
A GREATER POTENTIAL FOR CONTAMINATING WATER THAN DO GASES, WHICH WOULD
BE NORMALLY DRIVEN INTO THE ATMOSPHERE AS SOON AS THE CONTAMINATED WATER
WAS DRAWN FROM THE TAP.
THE DEFINITION OF CLASS III INJECTION WELLS HAS REMAINED UNCHANGED.
THE DEFINITION OF CLASS IV WELLS HAS BEEN LIMITED WITH REGARD TO ITS
PROXIMITY TO A USDW, IN THE SAME WAY, AND FOR THE SAME REASON, AS THE
DEFINITION FOR CLASS I WELLS. IN ADDITION, THE PROPOSED DEFINITION
COVERED ANY WELL INJECTION BY A HWM FACILITY, WHICH WAS OVERLY BROAD.
SEVERAL COMMENTERS SUGGESTED THAT CLASS IV WELLS SHOULD BE LIMITED TO
THOSE WELLS WHICH INJECT HAZARDOUS WASTE AND NOT INCLUDE ANY AND ALL
INJECTION WELLS OWNED BY A HAZARDOUS WASTE GENERATOR OR DISPOSER. EPA
CONCURS AND HAS REDEFINED CLASS IV WELLS AS THOSE, INCLUDING
NON-RESIDENTIAL SEPTIC SYSTEM WELLS, USED BY HAZARDOUS WASTE MANAGEMENT
FACILITIES TO INJECT HAZARDOUS MATERIAL INTO OR ABOVE FORMATIONS THAT
CONTAIN AN UNDERGROUND SOURCE OF DRINKING WATER. DISPOSAL WELLS NOT
ASSOCIATED WITH HWM FACILITIES, SUCH AS THOSE ON FARMS INJECTING WATER
CONTAINING PESTICIDE RESIDUES, WILL BE CLASSIFIED AS CLASS V.
ANY INJECTION WELL WHICH IS NOT OTHERWISE CLASSIFIED WILL BE A CLASS
V WELL. SUCH WELLS ARE NOT FREE FROM REGULATION (SEE SECTION 122.34),
BUT NEED NOT COMPLY WITH THE TECHNICAL DESIGN AND OPERATION REQUIREMENTS
PRESCRIBED FOR OTHER CLASSES OF WELLS IN PART 146.
COMMENTERS SAID THAT SAND BACKFILL OPERATIONS USING URANIUM MILL
TAILINGS WHICH MEET THE HAZARDOUS WASTE CRITERIA OF RCRA MIGHT BE
INJECTING MATERIALS TERMED HAZARDOUS.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 040 OF 225
COSTLE DM ADMINISTRATOR
EPA
113539
REGULATIONS
THEY POINTED OUT THAT THE PROPOSED REGULATIONS CONSIDER SAND BACKFILL
OPERATIONS TO BE CLASS V WELLS BUT, IF THEY DO INJECT HAZARDOUS WASTE,
THE OPERATIONS MIGHT BE CONSIDERED CLASS IV WELLS.
IN SAND BACKFILL OPERATIONS WASTE MATERIALS REMAINING FROM THE
MILLING PROCESS ARE RETURNED TO ABANDONED PORTIONS OF THE MINE FROM
WHICH THEY WERE ORIGINALLY REMOVED. WHILE SOME OF THESE MATERIALS MAY
BE DEFINED AS HAZARDOUS THEY ARE WASTE FROM PROCESSING OPERATIONS THAT
MUST BE DISPOSED OF IN SOME MANNER. EVEN THOUGH THERE ARE ENVIRONMENTAL
RISKS CONNECTED WITH THE PLACEMENT OF CERTAIN MATERIALS IN SAND BACKFILL
OPERATIONS, IN SOME INSTANCES, IT IS THE MOST ENVIRONMENTALLY SAFE
METHOD OF DISPOSAL. EPA BELIEVES FURTHER STUDY IS NEEDED BEFORE
TECHNICAL CRITERIA CAN BE PRESCRIBED FOR THESE WELLS. THEY WILL
THEREFORE BE CLASSIFIED IN CLASS V. WHETHER OR NOT THE TAILINGS ARE
HAZARDOUS WASTES. KEEPING THESE OPERATIONS IN CLASS V ALLOWS AN
INVENTORY AND ASSESSMENT PROCEDURE TO DETERMINE THE ACTUAL RISK
INDIVIDUAL SAND BACKFILL OPERATIONS PRESENT. PROVISIOINS ARE ALREADY
CONTAINED IN THE REGULATIONS FOR REMOVAL (INCLUDING IMMEDIATE CLOSURE)
OF ANY CLASS V WELLS WHICH PRESENT A SIGNIFICANT RISK.
THIS NEW SECTION HAS BEEN ADDED TO CLARIFY THE BASIC LEGAL AUTHORITY
WHICH ANY STATE MUST HAVE IN ORDER TO CARRY OUT A UIC PROGRAM. A
REQUIREMENT THAT THE STATE PROHIBIT CONSTRUCTION OF AN UNAUTHORIZED
WELL, AS WELL AS INJECTION, HAS BEEN ADDED. EPA BELIEVES THAT PERMITS
MUST BE ISSUED AND CONTROL REQUIREMENTS APPLIED BEFORE A WELL IS
CONSTRUCTED, NOT SIMPLY WHEN IT GOES INTO OPERATION. AMONG THE
TECHNICAL REQUIREMENTS OF PART 146 ARE CONSTRUCTION REQUIREMENTS. IT
MAY NOT BE POSSIBLE TO ASSURE COMPLIANCE WITH THESE REQUIREMENTS IF A
PERMIT IS NOT ISSUED UNTIL AFTER CONSTRUCTION OF THE WELL.
WE HAVE MOVED PROPOSED SECTION 122.38, THE GENERAL PROHIBITION
AGAINST MOVEMENT OF FLUIDS INTO USDWS, UP FRONT AS NEW SECTION 122.34.
THE TECHNICAL RATIONALE FOR THE PROHIBITION, AND RESPONSES TO COMMENTS,
APPEAR IN THE PREAMBLE TO PART 146. THE PROVISION HAS BEEN AUGMENTED TO
INCLUDE THE BASIC PROVISIONS DESIGNED TO ACHIEVE PROTECTION OF USDWS FOR
ALL CLASSES OF WELLS, NOT JUST CLASS I, II, AND III.
EPA BELIEVES THAT THIS REORGANIZATION WILL SERVE TO PLACE THE BASIC
REQUIREMENTS OF THE UIC PROGRAM UP FRONT, AND DISPEL CONFUSION ABOUT
THEIR OPERATION. FOR CLASSES I, II, AND III, NO INJECTION MAY BE
AUTHORIZED BY PERMIT OR RULE IF IT CAUSES OR A-LOWS THE MOVEMENT OF
FLUID INTO A USDW. IF MONITORING INDICATES MOVEMENT, THE DIRECTOR MAY
IMPOSE ADDITIONAL REQUIREMENTS AS NECESSARY. THIS STANDARD FOR CLASSES
I, II, AND III WAS SELECTED BECAUSE IT IS OPERATIONALLY MEANINGFUL
(I.E., IT CAN BE MEASURED OR OTHERWISE DETERMINED) AND BECAUSE IT CAN BE
ACHIEVED THROUGH THE USE OF AVAILABLE, GOOD ENGINEERING PRACTICES.
BECAUSE OF THE DESIGN OF CLASS IV WELLS, THE USE OF GOOD ENGINEERING
PRACTICES WILL NOT RELIABLY INSURE THAT MOVEMENT OF FLUIDS INTO USDWS
WILL NOT OCCUR. CONSEQUENTLY, CLASS IV WELLS INJECTING DIRECTLY INTO A
USDW ARE TO BE CLOSED. THE REGULATION OF OTHER CLASS IV WELLS IS
RESERVED.
SIMILARLY, CLASS V EMBRACES WELLS OF DIFFERING CONSTRUCTION AND
DESIGN, MANY OF WHICH INJECT NON-HAZARDOUS FLUIDS INTO AND ABOVE USDWS.
A "NO MOVEMENT" STANDARD WOULD NOT MAKE SENSE FOR THESE WELLS.
THEREFORE, THE PROHIBITION RELIES ON THE LANGUAGE OF THE SDWA. CLASS V
WELLS ARE NOT TO CAUSE A VIOLATION OF PRIMARY DRINKING WATER STANDARDS
AND THEY ARE NOT TO AFFECT THE HEALTH OF PERSONS ADVERSELY. WHILE THE
CLASS V WELLS ARE BEING ASSESSED, THE DIRECTOR IS TO TAKE ACTION WITH
REGARD TO ANY WELL THAT VIOLATES EITHER OF THESE PROHIBITIONS. SUCH
ACTION MAY BE ACCOMPLISHED THROUGH AN ORDER OR BY REQUIRING THE INJECTOR
TO APPLY FOR A PERMIT.
THE PERMIT MECHANISM MAY BE A MORE EFFICIENT ONE UNDER SOME STATE
LAWS TO PRESCRIBE CONTROLS. THE REGULATION LEAVES TO THE DIRECTOR'S
DISCRETION WHAT TECHNICAL REQUIREMENTS WOULD BE IMPOSED THROUGH SUCH A
PERMIT. HOWEVER, ALL THE CONDITIONS IN SECTIONS 122.7, 122.41, AND
122.42 MUST BE INCLUDED IN SUCH PERMITS EXCEPT FOR THE PLUGGING AND
ABANDONMENT REQUIREMENTS AND MECHANICAL INTEGRITY REQUIREMENTS OF
SECTION 122.42, WHICH THE DIRECTOR MAY INCLUDE AS A DISCRETIONARY
MATTER. BY AN AMENDMENT TO SECTION 122.9 (DURATION OF PERMITS), A CLASS
V WELL MAY BE PERMITTED FOR UP TO TEN YEARS.
A NEW PROVISION HAS BEEN INCLUDED TO AUTHORIZE THE DIRECTOR TO TAKE
EMERGENCY ACTIONS WHENEVER EPA WOULD BE AUTHORIZED TO DO SO UNDER
SECTION 1431 OF THE SDWA, TO PREVENT IMMINENT AND SUBSTANTIAL
ENDANGERMENT TO THE HEALTH OF PERSONS.
NUMEROUS COMMENTERS NOTED THE APPARENT CONTRADICTION BETWEEN PART 146
AND PART 122 ON AQUIFER DESIGNATION AND NOTED THAT EPA USED DIFFERENT
DEFINITIONS FOR A USDW IN THE RCRA AND UIC PROGRAMS. EPA HAS CLARIFIED
ITS INTENT AND RESOLVED THE DIFFERENCES BETWEEN RCRA AND UIC BY
IDENTIFYING USDWS BY DEFINITION. THE DIRECTOR MAY DESIGNATE AQUIFERS AS
USDWS TO FACILITATE PROGRAM ADMINISTRATION AND PUT POTENTIAL INJECTORS
ON NOTICE OF REGULATORY REQUIREMENTS.
EPA ENCOURAGES STATE DIRECTORS TO DESIGNATE AQUIFERS AS USDWS, TO
MAKE THE DESIGNATION AS THOROUGH AND COMPLETE AS POSSIBLE. EVEN IF AN
AQUIFER IS NOT DESIGNATED, IT IS A USDW IF IT MEETS THE TECHNICAL
CRITERIA OF SECTION 122.3 AND HAS NOT BEEN EXEMPTED. FOR THIS REASON,
THE BURDEN WILL BE ON ANY OWNER AND OPERATOR PLANNING TO CONSTRUCT AN
INJECTION WELL TO ASCERTAIN IF THE WELL IS LIKELY TO PASS CLOSE ENOUGH
TO A USDW TO REQUIRE A PERMIT, OR TO DETERMINE IF A PERMIT IS OTHERWISE
REQUIRED (IF, FOR EXAMPLE, THE INJECTOR IS INJECTING HAZARDOUS WASTES).
THUS, FOR EXAMPLE, AN INJECTOR MIGHT COMMENCE DRILLING A WELL BELIEVING
IT WAS NOT GOING TO INJECT HAZARDOUS WASTES AND THAT THE WELL WOULD NOT
INTERSECT OR PASS CLOSE TO A USDW. SUCH A WELL MIGHT BE AUTHORIZED BY
RULE AS A CLASS V WELL. IF THE DRILLING OPERATION INTERSECTS AN
AQUIFER, HOWEVER, THE DRILLER MUST SAMPLE THE WATER AND TEST IT TO
DETERMINE IF IT IS A USDW, AND IF SO, MUST CEASE ALL FURTHER DRILLING
AND CONSTRUCTION UNTIL IT HAS OBTAINED A PERMIT AS REQUIRED BY THE STATE
PROGRAM.
SOME AQUIFERS MAY NOT, AS COMMENTERS NOTED, BE AMENDABLE TO
DESCRIPTION BY GEOGRAPHIC METHODS. THE DIRECTOR MAY IDENTIFY USDWS OR
EXEMPTED AQUIFERS IN NARRATIVE TERMS OR A COMBINATION OF NARRATIVE AND
GEOGRAPHIC TERMS.
THE STATE DIRECTOR MAY ALSO IDENTIFY "EXEMPTED AQUIFERS," A
DEFINITION OF "EXEMPTED AQUIFER" HAS BEEN ADDED TO SECTION 122.3(C).
THIS TERM TAKES THE PLACE OF THE EXCEPTIONS TO USDW'S FORMERLY LISTED IN
PROPOSED SECTION 146.04, WHICH ALSO APPEARED IN THE DEFINITION OF USDW
IN PROPOSED SECTION 122.3(A). THE TERM AND ITS DEFINITION HAVE BEEN
ADOPTED BY EPA FROM SEVERAL SUGGESTIONS BY COMMENTERS. AN EXEMPTED
AQUIFER IS AN AQUIFER OR PORTION WHICH WOULD NORMALLY QUALIFY AS A USDW
BUT WHICH FOR ANY OF SEVERAL SPECIFIED REASONS HAS NO ACTUAL POTENTIAL
FOR PROVIDING DRINKING WATER AND WHICH HAS BEEN AFFIRMATIVELY IDENTIFIED
AS AN EXEMPTED AQUIFER BY THE STATE DIRECTOR AS PART OF THE PROGRAM
DESCRIPTION REQUIRED BY SECTION 123.4(G). IF A STATE DIRECTOR EXEMPTED
AN AQUIFER OR PORTION OF AN AQUIFER, IT IS NOT TREATED AS A USDW SUBJECT
TO THE PROTECTIONS OF THESE REGULATIONS.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 041 OF 225
COSTLE DM ADMINISTRATOR
EPA
113540
REGULATIONS
IN THE FINAL REGULATIONS, ALL WELLS WHICH ARE USED TO INJECT
"HAZARDOUS WASTE," AS DEFINED UNDER RCRA, ARE GROUPED INTO CLASSES I OR
IV. CLASS IV ALSO COVERS THE INJECTION OF RADIOACTIVE WASTES.
STANDARDS FOR CLASS I WELLS HAVE ALREADY BEEN DISCUSSED ABOVE. SECTION
122.36 ESTABLISHES, ON AN INTERIM BASIS, A PROHIBITION, ALSO REQUIRED
FOR APPROVABLE STATE ADMINISTERED PROGRAMS, AGAINST THE INJECTION OF
HAZARDOUS WASTE DIRECTLY INTO UNDERGROUND SOURCES OF DRINKING WATER
(USDWS). THE PROHIBITION IS EFFECTIVE SIX MONTHS AFTER THE EFFECTIVE
DATE OF A STATE PROGRAM. REQUIREMENTS APPLICABLE TO OTHER CLASS IV
WELLS -- THOSE WHICH INJECT ABOVE, BUT NOT INTO, USDWS -- ARE RESERVED.
ALSO RESERVED ARE ADDITIONAL REQUIREMENTS FOR EXAMPLE, MONITORING AND
RETENTION OF RECORDS) FOR CLASS IV WELLS INJECTING INTO USDWS.
SECTION 122.45 ESTABLISHES ADDITIONAL REQUIREMENTS FOR OPERATORS OF
WELLS THROUGH WHICH MANIFESTED HAZARDOUS WASTES ARE INJECTED. THEY
APPLY TO CLASS I WELLS AND WILL APPLY TO CLASS IV WELLS AS FINAL
STANDARDS ARE ESTABLISHED. THIS SECTION ESSENTIALLY REQUIRES THAT THE
OPERATORS OF THESE WELLS COMPLY WITH SELECTED REQUIREMENTS ESTABLISHED
FOR HAZARDOUS WASTE MANAGEMENT FACILITIES UNDER 40 CFR PART 122 SUBPART
C AND 40 CFR PART 264.
THE PROPOSED STANDARDS FOR WELLS USED TO INJECT HAZARDOUS WASTE
(SECTION 122.45, 44 FR 34285, JUNE 14, 1979) PROVIDED FOR A BAN ON THE
CONSTRUCTION AND OPERATION OF NEW CLASS IV WELLS, AND A THREE-YEAR
PHASE-OUT OF EXISTING ONES. THE PROPOSAL WOULDALSO HAVE REQUIRED THAT
WELLS USED TO INJECT HAZARDOUS WASTE COMPLY WITH THE MANIFEST AND
RECORD-KEEPING REQUIREMENTS OF THE HAZARDOUS WASTE MANAGEMENT
REGULATIONS.
THE DEFINITION OF CLASS IV HAS BEEN NARROWED. THE PROPOSAL REQUIRED
ONLY THAT THE WELL BE OWNED OR OPERATED BY; (1) A GENERATOR OF
HAZARDOUS WASTE; (2) THE OWNER OR OPERATOR OF A HAZARDOUS WASTE
MANAGEMENT FACILITY, AND (3) THAT THE INJECTION BE INTO OR ABOVE A USDW
IN ORDER TO BE INCLUDED IN CLASS IV. COMMENTERS CORRECTLY POINTED OUT
THAT THIS DEFINITION COULD EMBRACE WELLS THAT WERE NOT IN FACT USED TO
INJECT HAZARDOUS WASTE. A REQUIREMENT THAT HAZARDOUS WASTES BE INJECTED
HAS NOW BEEN ADDED TO THE DEFINITION OF CLASS IV. THE DEFINITION ALSO
CLARIFIES THAT THE INJECTION HAS TO BE "INTO OR ABOVE A FORMATION WHICH,
WITHIN ONE-QUARTER MILE OF THE WELL, CONTAINS A USDW" (SECTION 122.32).
A SECOND MAJOR CHANGE HAS BEEN MADE WITH REGARD TO THE COORDINATION
OF REGULATORY AUTHORITIES UNDER RCRA AND SDWA. BOTH ACTS MANDATE
REGULATORY CONTROLS ON THESE WELLS; RCRA BECAUSE HAZARDOUS WASTES ARE
DISPOSED OF THE SDWA BECAUSE FLUID IS EMPLACED BENEATH THE SURFACE. THE
DRAFT REGULATIONS PROPOSED THAT ALL SURFACE FACILITIES INVOLVED IN
MANAGING HAZARDOUS WASTE BE REGULATED UNDER RCRA. THE WELL ITSELF, FROM
THE CUT-OFF VALVE AT THE WELLHEAD WAS TO BE REGULATED UNDER SDWA. THE
RATIONALE FOR THE PROPOSAL WAS THAT THE DIFFERENT TECHNOLOGIES (SURFACE
MANAGEMENT V. INJECTION) COULD BE GROUPED AND REGULATED BY TECHNICAL
REQUIREMENT APPROPRIATE TO EACH.
ONE COMMENTER IN PARTICULAR OBJECTED, ARGUING THAT THE INJECTION OF
HAZARDOUS WASTE BE REGULATED UNDER RCRA BECAUSE THE REGULATIONS UNDER
RCRA COULD AFFORD A HIGHER LEVEL OF PROTECTION. THE AGENCY DOES NOT
AGREE THAT THE SDWA IS INHERENTLY WEAKER IN PREVENTING THE POTENTIAL
IMPACTS OF INJECTION. INDEED, THE DSWA PROVIDES BROADER AUTHORITY TO
REGULATE THE INJECTION OF MATERIALS (E.G., OIL AND GAS RELATED BRINES
AND FISSION BY-PRODUCTS) THAN RCRA.
HOWEVER, BECAUSE THE SDWA ALLOWS STATES UP TO 18 MONTHS TO DEVELOP
UIC PROGRAMS, THERE COULD BE INSTANCES IN WHICH NO EFFECTIVE UIC PROGRAM
WILL EXIST IN A STATE FOR TWO YEARS AFTER THE EFFECTIVE DATE OF THESE
REGULATIONS. IN ORDER TO PROVIDE SOME LEVEL OF ENVIRONMENTAL PROTECTION
DURING THIS PERIOD, SECTION 122.45 NOW REQUIRES ALL INJECTORS OF
HAZARDOUS WASTE TO OBTAIN "INTERIM STATUS" UNDER THE HAZARDOUS WASTE
MANAGEMENT PROGRAM. WHEN THE APPLICABLE STATE UIC PROGRAM BECOMES
EFFECTIVE, SUCH INJECTORS WILL BE REGULATED UNDER THE UIC PROGRAM.
HOWEVER, SECTION 122.26 PROVIDES FOR A PERMIT BY RULE UNDER RCRA WHICH
WILL BE SATISFIED IF THE INJECTOR IS IN COMPLIANCE WITH THE APPLICABLE
UIC STANDARDS. IN ORDER TO MAKE CONTROL UNDER SWDA SUBSTANTIALLY
EQUIVALENT TO CONTROL UNDER RCRA, SECTION 122.45 HAS BEEN EXPANDED TO
INCLUDE APPROPRIATE STANDARDS FROM 40 CFR PART 264 IN ADDITION TO THE
MANIFEST SYSTEM.
THE THIRD MAJOR CHANGE FROM THE PROPOSAL IS THAT THE REQUIREMENTS FOR
CLASS IV WELLS, OTHER THAN THOSE INJECTING HAZARDOUS WASTES INTO A USDW,
ARE RESERVED. THERE ARE SEVERAL REASONS FOR THIS DECISION. WHILE FEW
COMMENTERS QUESTIONED THE BASIC PREMISE UNDERLYING THE PROPOSAL, SOME
QUESTIONED WHETHER, AT LEAST IN SOME CASES, THE MIGRATION OF FLUID INTO
A USDW WOULD IN FACT CAUSE ANY ADVERSE EFFECTS EITHER ON DRINKING WATER
SUPPLIES OR HUMAN HEALTH. OTHER COMMENTERS SUGGESTED THAT A WELL SHOULD
NOT BE BANNED IF IT OVERLIES A DEEP OR REMOTE USDW WHICH IT IS NOT
LIKELY TO CONTAMINATE. AS NOTED ABOVE, COMMENTERS ALSO INDICATED THEIR
BELIEF THAT THE DEFINITION OF CLASS IV WAS TOO BROADLY DRAWN, AND THAT,
THEREFORE, THE PROPOSED STANDARD WAS UNNECESSARILY PROTECTIVE. THE
AGENCY HAS REVIEWED THESE COMMENTS AND IS MINDFUL OF ITS OBLIGATION TO
PROCEED WITH EXTRAORDINARY CARE BEFORE IMPOSING AN ABSOLUTE BAN ON ANY
PRACTICW. THE AGENCY'S CONCERN IN FASHIONING THE PROPOSAL WAS TO AFFORD
PROTECTION TO DRINKING WATER SOURCES. NOR IS THE AGENCY COMTEMPLATING
ANY CHARGES WHICH WOULD SACRIFICE OR ENDANGER DRINKING WATER SOURCES
PEOPLE RELY ON. FURTHERMORE, WELLS INJECTING HAZARDOUS WASTES ARE ALSO
SUBJECT TO RCRA WHICH MANDATES A BROADER SET OF ENVIRONMENTAL CONCERNS
THAN DRINKING WATER. NEVERTHELESS, THERE MAY WELL BE PORTIONS OF
AQUIFERS SO DEEP OR REMOTE THAT THEY MAY NEVER SERVE AS DRINKING WATER
SOURCES, OR CONDITIONS UNDER WHICH A PARTICULAR INJECTION MAY NOT HAVE
AN IMPACT ON THE QUALITY OF THE DRINKING WATER SOURCE.
A FURTHER REASON FOR THE PROPOSED APPROACH IS THAT REGULATIONS UNDER
RCRA AND SDWA TOUCH AT SEVERAL POINTS. FACILITIES UNDER CLASS I AND
CLASS IV OVERLAP THE CLASS OF FACILITIES DESIGNATED UNDER RCRA AS
HAZARDOUS WASTE MANAGEMENT FACILITIES. IT IS, THEREFORE, APPROPRIATE
THAT TECHNICAL STANDARDS UNDER RCRA AND UIC BE CONSISTENT, TO THE EXTENT
ALLOWABLE UNDER THE GOVERNING STATUTES, FOR FACILITIES CAPABLE OF
CAUSING A SIMILAR DEGREE OF ENVIRONMENTAL RISK.
EPA HAS DECIDED TO DEFER ISSUANCE OF PERMITTING STANDARDS FOR HWM
FACILITIES UNTIL FALL 1980. ADOPTION OF UIC STANDARDS NOW FOR CLASS IV
WELLS COULD PROVE MISLEADING TO THE STATES AND THE PUBLIC, BECAUSE EPA
MIGHT DECIDE THIS FALL TO REVISE THE STANDARDS TO REFLECT POLICY
DECISIONS MADE IN CONNECTION WITH RCRA STANDARDS. THE BEST COURSE IS TO
DEFER THE TECHNICAL STANDARDS FOR CLASS IV WELLS WHICH INJECT ABOVE
USDWS UNTIL FALL 1980. ACCORDINGLY, WE NOW SOLICIT FURTHER COMMENT ON
REQUIREMENTS FOR CLASS IV WELLS.
EPA HAS UNDER CONSIDERATION SEVERAL OPTIONS WHICH WOULD ALLOW CLASS
IV WELLS TO INJECT, IN CERTAIN CIRCUMSTANCES. IN ORDER TO ASSIST
COMMENTERS, THESE OPTIONS ARE DESCRIBED BELOW. IN ADDITION TO THE SDWA,
EPA IS CONSIDERING INVOKING RCRA AUTHORITY TO DEAL WITH CLASS IV WELLS.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 042 OF 225
COSTLE DM ADMINISTRATOR
EPA
113541
REGULATIONS
ACCORDINGLY, AFTER CONSIDERATION OF COMMENTS, EPA WILL PUBLISH
REGULATIONS THIS FALL AMENDING 40 CFR PART 122, SUBPART C, OR PARTS 146,
264, OR 265. AT THAT TIME, EPA MAY DECIDE TO PROHIBIT ALL CLASS IV
WELLS AS PROPOSED UNDER SDWA OR RCRA OR BOTH, ADOPT ANY OF THE OPTIONS
DISCUSSED BELOW, OR ADOPT ANY COMBINATION OR MODIFICATION OF THE OPTIONS
WHICH APPEARS JUSTIFIED BASED UPON THE RECORD, INCLUDING COMMENTS
RECEIVED.
THE LANGUAGE OF THE ACT (SECTION 1421(D)(2)) STATES THAT:
UNDERGROUND INJECTION ENDANGERS DRINKING WATER SOURCES IF SUCH
INJECTION MAY RESULT IN THE PRESENT OF UNDERGROUND WATER WHICH SUPPLIES
OR CAN REASONABLY BE EXPECTED TO SUPPLY ANY PUBLIC WATER SYSTEM OF ANY
CONTAMINANT, AND IF THE PRESENCE OF SUCH CONTAMINANT MAY RESULT IN SUCH
SYSTEM'S NOT COMPLYING WITH ANY NATIONAL PRIMARY DRINKING WATER
REGULATIONS OR MAY OTHERWISE ADVERSELY AFFECT THE HEALTH OF PERSONS.
FOR THE PROPOSED REGULATIONS, EPA ADOPTED A CONSERVATIVE APPROACH TO
THE DESIGNATION OF USDWS. THIS APPROACH WAS BASED UPON THAT SUGGESTED
IN THE HOUSE COMMITTEE REPORT ON SDWA (H.R. REPT. NO. 93-1185, 92D
CONG., 2D SESS. AT P. 32). THUS, EPA PROPOSED TO PROTECT ANY AQUIFER OR
AQUIFER PORTION ALREADY IN USE AS A SOURCE OF DRINKING WATER. AQUIFERS
OR PORTIONS WHICH COULD POTENTIALLY SERVE AS DRINKING WATER SOURCES
WOULD ALSO BE PROTECTED IF THEY COULD YIELD USEABLE QUANTITIES OF WATER
CONTAINING FEWER THAN 10,000 MG/1 OF TDS.
POTENTIAL DRINKING WATER SOURCES WHICH MET THE TECHNICAL DEFINITION
COULD BE DESIGNATED AS "EXEMPTED AQUIFERS" IF THEY ARE: (1)
HYDROCARBON, MINERAL OR GEOTHERMAL ENERGY PRODUCING; (2) SO
CONTAMINATED AS TO MAKE THEIR USE FOR HUMAN CONSUMPTION TECHNICALLY OR
ECONOMICALLY IMPRACTICAL; AND (3) LOCATED IN SUCH A FASHION AS TO MAKE
THEIR USE TECHNICALLY OR ECONOMICALLY IMPRACTICAL.
WITHIN THIS REGULATORY APPROACH, TWO ALTERNATIVE METHODS SUGGEST
THEMSELVES FOR EXPANDING THE RANGE OF ALLOWABLE CLASS IV PRACTICES. THE
FIRST IS TO ATTEMPT A MORE PRECISE DISTINCTION BETWEEN GROUND WATER IN
GENERAL AND GROUND WATER THAT SERVES OR CAN REASONABLY BE EXPECTED TO
SERVE AS A SOURCE OF DRINKING WATER. OPTION A TAKES THIS APPROACH.
A SECOND POSSIBLE APPROACH IS TO ATTEMPT A MORE PRECISE DEFINITION OF
THE CIRCUMSTANCES UNDER WHICH THE PRESENCE OF CONTAMINANTS IN A USDW MAY
OR MAY NOT CAUSE A SYSTEM TO EXCEED NATIONAL PRIMARY DRINKING WATER
(NPDWR) STANDARDS OR OTHERWISE ADVERSELY AFFECT THE HEALTH OF PERSONS.
OPTION B TAKES THE LATTER APPROACH.
OPTION A. THIS OPTION WOULD ENTAIL MODIFICATION OF THE DEFINITION OF
A USDW TO DECLINE TO PROTECT USDWS IN AREAS ADEQUATELY SERVED BY OTHER
SOURCES. EPA IS AWARE OF AREAS OF THE COUNTRY WHICH ARE UNDERLAIN BY
AQUIFERS CONTAINING IMMENSE QUANTITIES OF USABLE FRESH WATER, OR WHERE
SURFACE WATER SUPPLIES ARE SO PLENTIFUL THAT THEY COULD REASONABLY BE
EXPECTED TO SUPPLY ALL FORESEEABLE NEEDS FOR DRINKING WATER. IN SUCH
CASES, EPA IS WILLING TO CONSIDER A POLICY WHICH WOULD AUTHORIZE
INJECTION THROUGH CLASS IV WELLS.
IN THIS APPROACH, AN ADDITIONAL BASIS FOR EXEMPTION COULD BE ADDED TO
SECTION 146.04 THAT WOULD ALLOW THE DIRECTOR TO DECLINE TO PROTECT AN
AQUIFER OR ITS PORTION IF IT "OTHERWISE CANNOT REASONABLY BE EXPECTED TO
SERVE AS A SOURCE OF DRINKING WATER." TO JUSTIFY SUCH AN EXEMPTION, THE
DIRECTOR COULD BE REQUIRED TO CONSIDER THE FOLLOWING FACTORS:
PRESENT AND FUTURE AVAILABILITY OF ALTERNATIVE SOURCES OF DRINKING
WATER;
FUTURE POPULATION GROWTH AND LAND USE PATTERNS IN THE AREA; AND
THE EXPECTED GROWTH IN THE DEMAND FOR DRINKING WATER.
IN KEEPING WITH THE REVISED DEFINITION NOTED ABOVE, SUCH WELLS WOULD
FALL UNDER CLASS I BECAUSE THEY WOULDINJECT INTO EXEMPTED AQUIFERS
(I.E., NOT INTO OR ABOVE A USDW). INJECTORS WOULD APPLY FOR PERMITS
WITH A DURATION OF UP TO TEN YEARS AS SPECIFIED IN 40 CFR 146 SUBPART B,
WITH ONE EXCEPTION. THE APPLICANT WOULD BE REQUIRED TO MAKE A SHOWING
THAT THE INJECTION WOULDNOT IMPACT AQUIFERS OR PORTIONS OF AQUIFERS
PROTECTED AS USDWS. SUCH A SHOWING WOULD INVOLVE A DEMONSTRATION THAT
THE INJECTION ZONE IS NOT IN HYDRAULIC CONNECTION WITH OR THAT THE
NATURAL FLOW FROM THE INJECTION ZONE IS AWAY FROM PROTECTED USDWS.
THE APPLICATION WOULD BE PROCESSED AS ANY OTHER CLASS I PERMIT
PAPLICATION. UNDER SECTION 122.43, THE DIRECTOR WOULDHAVE THE
DISCRETION TO REQUIRE SUCH PERMIT CONDITIONS AS HE BELIEVES NECESSARY TO
PROTECT USDWS.
OPTION B. THIS OPTION WOULDRECOGNIZE THAT THE INJECTION OR PRESENCE
OF CONTAMINANTS IN A USDW MAY NOT NECESSARILY LEAD TO DRINKING WATER
SUPPLIES EXCEEDING THE NPDW STANDARDS OR ADVERSE EFFECTS ON THE HEALTH
OF PERSONS. BASED ON THIS RATIONAL, A MORE LIBERAL APPROACH COULD BE
TAKEN TO REGULATING CLASS IV WELLS IF THE APPLICANT COULD DEMONSTRATE
THAT THE INJECTION: (1) IS ENVIRONMENTALLY THE MOST ACCEPTABLE METHOD
OF DISPOSAL; AND (2) WOULDNOT CONTAMINATE THE PORTION OF THE AQUIFER
FROM WHICH WATER IS DRAWN FOR DRINKING.
UNDER SUCH AN APPROACH, THE STANDARD THAT THE APPLICANT WOULD HAVE TO
DEMONSTRATE WOULD BE THAT:
TECHNOLOGY FOR SAFE DISPOSAL IS NOT AVAILABLE, TAKING INTO ACCOUND
THE COSTS;
INJECTING FLUID WILL BE LESS HARMFUL THAN USE OF OTHER AVAILABLE
MEANS; AND
TECHNOLOGY AND OTHER MEANS WILL BE EMPLOYED TO REDUCE VOLUME AND
TOXICITY OF WATERS.
THE APPLICANT WOULD BE REQUIRED TO:
DEMONSTRATE THAT THE PROPOSED INJECTION IS THE MOST ENVIRONMENTALLY
ACCEPTABLE ALTERNATIVE AVAILABLE CONSIDERING TECHNOLOGY AND THE COST OF:
TRUCKING TO AN APPROVED SITE.
PRETREATMENT PRIOR TO INJECTION.
CONSTRUCTION OF A CLASS I WELL.
INCINERATION.
SEGREGATION OF STREAMS AND/OR REDUCTION IN FLOW.
DEMONSTRATE ANTICIPATED GROUND WATER IMPACT WILL NOT ADVERSELY AFFECT
THE HEALTH OF PERSONS OR VIOLATE NPDWR BASED ON THE FOLLOWING
INFORMATION:
INJECTION VOLUME AND PRESSURE.
LIFE OF OPERATION.
DIRECTION OF GROUND WATER FLOW.
PROXIMITY TO USE.
MONITORING UP GRADIENT AND DOWN GRADIENT.
GEOLOGICAL AND HYDROLOGICAL DATA.
CLOSURE PLAN.
THERE WOULD BE CERTAIN COMMON ELEMENTS UNDER BOTH OPTIONS. INJECTORS
WOULD BE REQUIRED TO OBTAIN A PERMIT TO OPERATE A CLASS IV WELL WITHIN
ONE YEAR OF THE EFFECTIVE DATE OF THE STATE PROGRAM OR CLOSE. PERMITS
COULD BE FOR A DURATION OF 10 YEARS, AND NEW WELLS WOULD BE SUBJECT TO
THE REQUIREMENT IN SECTION 122.33 THAT A PERMIT BE OBTAINED PRIOR TO THE
CONSTRUCTION OF A NEW WELL.
SIMILARLY, THERE ARE CERTAIN COMMON QUESTIONS WITH REGARD TO
IMPLEMENTATION UNDER EITHER OPTION. THE AGENCY SOLICITS SPECIFIC,
DETAILED COMMENTS ON THESE QUESTIONS: FIRST, DO FACTUAL CIRCUMSTANCES
EXIST IN WHICH EPA SHOULD ALLOW INJECTION OF HAZARDOUS WASTE INTO OR
ABOVE AN UNDERGROUND SOURCE OF DRINKING WATER? SECOND, IF SO, WHAT
INFORMATION SHOULD BE REQUIRED OF THE APPLICANT TO SHOW THAT THE
INJECTION WILL NOT ENDANGER DRINKING WATER SOURCES, AND WHAT CRITERIA
SHOULD THE DIRECTOR USE IN GRANTING OR DENYING PERMITS? THIRD, SHOULD
NEW AND EXISTING CLASS IV WELLS BE TREATED DIFFERENTLY OR ALIKE?
FOURTH, SHOULD THE DECISION TO ALLOW THE USE OF A CLASS IV WELL BE MADE
AS PART OF A STATEWIDE OR REGIONAL PLAN (E.G., SECTION 208, LAND USE,
RCRA SECTION 4007 SOLID WASTE PLAN, UIC PROGRAM APPLICATION) OR AS PART
OF THE INDIVIDUAL PERMIT DECISION? FIFTH, WHAT FACTORS SHOULD BE
CONSIDERED IN SUBDIVIDING AQUIFERS INTO RELATIVELY CONFINED EXEMPTED
AREAS AND USDWS?
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 043 OF 225
COSTLE DM ADMINISTRATOR
EPA
113542
REGULATIONS
SIXTH, WHAT PROCEDURES SHOULD BE IMPOSED TO ENSURE FULL PUBLIC
PARTICIPATION IN DECISIONS TO ALLOW INJECTION THROUGH CLASS IV WELLS?
SEVENTH, WHAT KINDS OF POST-CLOSURE CARE REQUIREMENTS (MONITORING,
THIRD-PARTY LIABILITY, USE RESTRICTIONS) SHOULD BE IMPOSED ON CLASS IV
WELL OPERATORS? EIGHTH, ARE THE AUTHORITIES UNDER SDWA AND CWA
SUFFICIENT TO PREVENT THE POTENTIAL IMPACTS OF SUCH INJECTIONS OR SHOULD
RCRA AUTHORITIES BE INVOKED TO MEET NON-HUMAN HEALTH RELATED
ENVIRONMENTAL CONCERNS SUCH AS AQUIFERS DISCHARGING TO STREAMS AND
SURFACE IMPACT ON VEGETATION?
THESE FINAL REGULATIONS PROHIBIT NEW CLASS IV WELLS INJECTING
DIRECTLY INTO USDWS AS OF THE EFFECTIVE DATE OF THESE REGULATIONS.
EXISTING SUCH CLASS IV FACILITIES ARE ALLOWED ONLY SIX MONTHS FROM THE
EFFECTIVE DATE OF THE STATE PROGRAM IN WHICH TO CLOSE, WHICH WILL IN
MANY CASES, BE MORE THAN TWO YEARS AFTER THE DATE OF THESE NATIONAL
REGULATIONS. EVEN THOUGH REQUIREMENTS FOR THESE WELLS ARE RESERVED
UNDER THE UIC PROGRAM, ALL CLASS IV WELLS MUST MEET INTERIM STATUS
STANDARDS UNDER RCRA.
ONLY MINOR CHANGES HAVE BEEN MADE FROM THE PROPOSAL. FIRST, THE
SECTION HAS BEEN WRITTEN TO CLARIFY WHEN CONSTRUCTION REQUIREMENTS MUST
BE COMPLIED WITH. SECOND, THE RULES ARE LIMITED TO EXCLUDE WELLS, WHICH
HAVE NOT RESPONDED TO INVENTORIES GENERALLY, NOT MERELY CLASS IV AND V
INVENTORIES.
A NUMBER OF COMMENTERS NOTED THAT THIS SECTION AS PROPOSED DID NOT
EXPLICITLY SPECIFY WHAT OPERATIONAL REQUIREMENTS WERE APPLICABLE TO
INJECTORS AUTHORIZED BY RULE, AS OPPOSED TO BY PERMIT. THIS SECTION HAS
BEEN REVISED TO INCORPORATE THE APPLICABLE REQUIREMENTS OF SECTIONS
122.41 AND 122.42. MOST OF THESE REQUIREMENTS ARE AS NECESSARY FOR
RULES AS THEY ARE FOR PERMITS. THE EXCEPTIONS (FOR EXAMPLE, THE
REQUIREMENT THAT THE INJECTOR APPLY FOR A RENEWAL PERMIT) ARE EXPLICITLY
NOTED HERE.
IN RESPONSE TO COMMENTS, THIS SECTION HAS BEEN REVISED TO ALLOW
A RULE TO CONTINUE (EVEN BEYOND ITS TERMINATION DATE) TO AUTHORIZE
INJECTION WHERE THE INJECTOR HAS APPLIED FOR A PERMIT AND THE
DIRECTOR HAS NOT YET ACTED ON THE APPLICATION.
A NEW PARAGRAPH (C) HAS BEEN ADDED TO THIS SECTION TO AUTHORIZE THE
DIRECTOR TO REQUIRE AN INJECTOR AUTHORIZED BY RULE TO APPLY FOR A
PERMIT. EPA BELIEVES THAT THIS AUTHORITY MAY BE NECESSARY IN SOME CASES
TO PROVIDE A MEANS OF PROMPTLY IMPOSING CLEANUP MEASURES ON PROBLEM
WELLS OR OF ALLOWING THE DIRECTOR TO PHASE IN THE PERMITTING OF WELLS IN
AN ORDERLY WAY.
EPA REJECTS THE CLAIM BY ONE INDUSTRY THAT THE AUTHORIZATION OF
EXISTING CLASS II WELLS BY RULE WILL RESULT IN LOSS OF OIL RESERVES.
EXISTING WELLS ARE ALLOWED TO CONTINUE CURRENT OPERATIONS WITH THE
EXCEPTION THAT THEY MUST START MONITORING AND REPORTING, AT SMALL COST.
THE ESTIMATED COSTS FOR THIS MONITORING AND REPORTING ARE GIVEN IN THE
PREAMBLE TO 40 CFR PART 146.
AS PROPOSED, THE SECTION REFERRED TO A SCHEDULE FOR SUBMITTING PERMIT
APPLICATIONS WHICH WAS TO BE PART OF A STATE DIRECTOR'S PROGRAM
SUBMISSION UNDER PART 123. HOWEVER, NO MENTION WAS MADE OF WHAT
HAPPENS, WHEN EPA IS THE PERMITTING AUTHORITY. WHEN EPA PROMULGATES ANY
UIC PROGRAM FOR A STATE, IT WILL SPECIFY THE SCHEDULE FOR APPLICATIONS
TO BE SUBMITTED. FOR STATES, THE PROGRAM DESCRIPTION UNDER SECTION
123.4 WILL ESTABLISH THE SCHEDULE.
PROPOSED PARAGRAPH (D), MECHANICAL INTEGRITY, HAS BEEN RELOCATED AS A
PERMIT CONDITION IN SECTION 122.42. A VERY LARGE NUMBER OF COMMENTERS
OBJECTED THAT THE PROHIBITION AGAINST PERMITTING WELLS WHICH LACKED
MECHANICAL INTEGRITY WAS ILLOGICAL SINCE PERMITS ARE ISSUED PRIOR TO
CONSTRUCTION AND MECHANICAL INTEGRITY CANNOT BE SHOWN UNTIL AFTER
CONSTRUCTION. RELOCATION AND REPHRASING OF THIS REQUIREMENT IS
RESPONSIVE TO THIS CONCERN.
A COMMENTER OBJECTED TO THE PROPOSED PROVISION AUTHORIZING A STATE TO
ALLOW AN APPLICANT TO SUBMIT AN APPLICATION AS MUCH AS FOUR YEARS AFTER
PROGRAM APPROVAL. THE COMMENTER POINTED OUT THAT THIS SCHEDULE
CONFLICTED WITH THE THREE-YEAR SCHEDULE SET OUT IN SECTION 1421(B) OF
THE SDWA. EPA HAS RETAINED THE FOUR YEAR PHASE-IN. ALL INJECTORS MUST
BE AUTHORIZED EITHER BY PERMIT OR RULE UNDER A STATE PROGRAM, AS
REQUIRED BY SECTION 1421. HOWEVER, EPA BELIEVES THAT A REASONABLE
PHASE-IN PERIOD IS NECESSARY FOR STATES TO ISSUE PERMITS IN AN ORDERLY
WAY, AND FINDS A FOUR-YEAR PERIOD TO BE REASONABLE. MOREOVER, THE
STATES WILL HAVE INVENTORY INFORMATION UNDER STION 122.37 WELL BEFORE
THE EXPIRATION OF THE FOUR-YEAR PERIOD AND CAN TAKE ACTION UNDER SECTION
122.37(B) TO REQUIRE AN EARLY APPLICATION IF NECESSARY.
A COMMENTER ASKED EPA TO SPECIFY HOW LONG IN ADVANCE OF OPERATION A
PERMIT APPLICATION IS REQUIRED. SINCE A PERMIT WILL BE NEEDED FOR
CONSTRUCTION EACH OWNER OR OPERATOR SHOULD SUBMIT A COMPLETE (UNDER
SECTION 122.5(C) APPLICATION FOR A PERMIT AS EARLY AS POSSIBLE TO ALLOW
TIME FOR THE DIRECTOR TO PROCESS THE APPLICATION. SINCE THE TIME NEEDED
TO PROCESS A PERMIT WILL VARY WITH COMPLEXITY, AVAILABLE STATE
RESOURCES, CONTROVERSIAL SITUATIONS, AND OTHER FACTORS, EPA HAS CHOSEN
NOT TO REQUIRE A FIXED TIME FOR SUBMISSION PRIOR TO STARTING
CONSTRUCTION. INSTEAD, EPA HAS RETAINED THE REQUIREMENT THAT THE
APPLICATION BE SUBMITTED TO THE DIRECTOR A REASONABLE TIME BEFORE
CONSTRUCTION IS EXPECTED TO BEGIN. EPA SUGGESTS THAT AN APPLICANT
SUBMIT APPLICATIONS AT LEAST SIX MONTHS IN ADVANCE OF PLANNED
CONSTRUCTION.
THIS SECTION HAS BEEN EXTENSIVELY REWRITTEN FOR LOGIC AND CLARITY.
THE ONLY SUBSTANTIVE CHANGE IS TO ALLOW FOR NEW INJECTION WELLS WITHIN
THE AREA WITHOUT REQUIRING PRIOR ADMINISTRATIVE AUTHORIZATION. MANY
COMMENTERS NOTED THAT WITHOUT SUCH A REQUIREMENT IT WOULD BE IMPOSSIBLE
FOR SOME CLASS III OPERATIONS, SUCH AS FRASCH PROCESS OR SOLUTION MINING
OPERATIONS TO CONTINUE. THE REWRITTEN SECTION SHOULD ELIMINATE ANY
POSSIBLITY THAT THE NEED FOR AUTHORIZATION WILL HOLD UP THE DRILLING OF
ADDITIONAL WELLS WITHIN THE AREA. HOWEVER, ADDITIONAL WELLS ARE
CAREFULLY REGULATED UNDER THE TERMS OF THE AREA PERMIT AND THE PERMIT
CAN BE MODIFIED OR REVOKED IF ITS TERMS ARE VIOLATED. ADDITIONAL WELLS
WILL CONSTITUTE GROUNDS FOR MINOR MODIFICATIONS OF THE AREA PERMIT
WHICH, IF NECESSARY, CAN BE MADE WITHOUT REQUIRING PUBLIC NOTICE AND
OPPORTUNITY FOR A HEARING.
COMMENTERS POINTED OUT THAT MANY CLASS II WELL FIELDS ARE CUT BY
FAULTS, EVEN THOUGH THE FIELD IS A DISTINCT UNIT. THESE COMMENTERS
CONTENDED IT WAS UNREASONABLE TO LIMIT AREA PERMITS TO FIELDS INJECTING
INTO THE SAME AQUIFER. IN RESPONSE, EPA HAS ELIMINATED THE REQUIREMENT
THAT ALL WELLS INJECT INTO THE SAME AQUIFER. THEY NEED ONLY BE WITHIN
THE SAME WELL FIELD, FACILITY SITE, RESERVOIR, PROJECT, OR SIMILAR UNIT
IN THE SAME STATE. THE FINAL RULE ALSO ADOPTS A COMMENTER'S SUGGESTION
THAT CONTROL BY A SINGLE "OWNER OR OPERATOR," RATHER THAN A SINGLE
"PERSON", BE REQUIRED FOR AREA PERMITS.
COMMENTS OBJECTED TO THE AUTHORIZATION OF NEW WELLS WITHIN AN AREA
COVERED BY AN AREA PERMIT WHERE THE DIRECTOR HAS NOT CONSIDERED THE
CUMULATIVE IMPACT OF THE NEW WELLS, WHEN ADDED TO THOSE EXISTING AT THE
TIME OF PERMIT ISSUANCE. EPA AGREES, AND HAS ADDED A REQUIREMENT THAT
THE DIRECTOR CONSIDER THESE CUMULATIVE IMPACTS BEFORE ISSUING AN AREA
PERMIT WHICH AUTHORIZES NEW WELLS TO BE DRILLED WITHOUT SPECIFIC
APPROVAL BY THE DIRECTOR.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 044 OF 225
COSTLE DM ADMINISTRATOR
EPA
113543
REGULATIONS
THE FINAL RULES DO NOT REQUIRE THAT THE LOCATION OF EVERY WELL THAT
MIGHT BE DRILLED UNDER AN AREA PERMIT BE IDENTIFIED IN ADVANCE OF PERMIT
ISSUANCE. HOWEVER, THERE MUST BE SUFFICIENT INFORMATION ON POTENTIAL
NEW WELLS IN ORDER FOR THE DIRECTOR TO CONSIDER CUMULATIVE IMPACT. IF
THERE IS NOT, THE DIRECTOR MAY ISSUE AN AREA PERMIT COVERING ONLY
EXISTING WELLS IF HE OR SHE WISHES TO, BUT NEW WELLS WILL BE REQUIRED TO
OBTAIN INDIVIDUAL PERMITS.
EPA PROPOSED THIS SECTION AS SECTION 122.40, "TEMPORARY
AUTHORIZATION." IT HAS BEEN RENAMED "TEMPORARY PERMITS" TO CORRESPOND TO
ITS ACTUAL FUNCTION, AND TO THE SCHEME OF THE SDWA, WHICH REQUIRES UIC
PROGRAMS TO PROHIBIT ANY INJECTION NOT AUTHORIZED EITHER BY A RULE OR A
PERMIT. EPA DOES NOT VIEW THIS SECTION AS UNLAWFUL OR AS AN ATTEMPT TO
DEPART FROM THE STATUTORY SCHEME, AS CONTENDED BY ONE COMMENTER. A
TEMPORARY PERMIT IS A PERMIT. THE PROCEDURES FOR ITS ISSUANCE, WHILE
DIFFERENT FROM THOSE FOR OTHER PERMITS UNDER THIS PART, IN NO WAY
CONTRAVENE THE SDWA. EPA BELIEVES, MOREOVER, THAT THE STRINGENT AND
NARROW CONDITIONS UNDER WHICH TEMPORARY PERMITS CAN BE GRANTED NOT ONLY
FILL A REAL NEED, BUT WILL ASSURE THAT THE INJECTION DOES NOT ENDANGER
DRINKING WATER SOURCES.
THE ISSUANCE OF THESE PERMITS IS, OF COURSE, OPTIONAL WITH THE STATE
DIRECTOR. NO STATE WHICH DOES NOT WISH TO ISSUE TEMPORARY PERMITS IS
REQUIRED TO DO SO BY THESE REGULATIONS.
NUMEROUS COMMENTERS EXPRESSED CONCERN THAT THE EPA PERMITTING
PROCEDURES HAVE THE POTENTIAL FOR CREATING OR CONTRIBUTING TO MAJOR
DELAYS IN ISSUING PERMITS. SEVERAL STATED THAT ISSUANCE OF DRAFT
PERMITS IS AN UNNECESSARY STEP IN THE UIC PERMITTING PROCESS. OTHERS
CLAIMED THAT THE DETAILED PROCEDURES IN PART 124 APPEAR TO BE EXCESSIVE
IN THAT THEY PROVIDE FOR UNWARRANTED DELAYS IN THE PERMITTING PROCESS
FOR OIL AND GAS WELLS.
EPA EVALUATED THESE COMMENTS AND FOUND THAT THE PERMITTING TIME
DELAYS ARISING FROM THESE REGULATIONS WOULD NOT CAUSE AN UNWARRANTED
DELAY EXCEPT WHERE NEW FIELD (WILDCAT) WELLS WERE INVOLVED. IF A
WILDCAT OPERATOR FOUND OIL HE OR SHE MIGHT HAVE TO DELAY INITIAL
PRODUCTION IN ORDER TO SECURE A UIC PERMIT TO DRILL AN INJECTION WELL
WHICH CONFORMS WITH THESE REGULATIONS.
TO AVOID ANY UNNECESSARY DELAY IN PRODUCTION FOR NEW FIELD WILDCAT
WELLS, SECTION 122.40 HAS BEEN EXPANDED TO PERMIT THE DIRECTOR TO ISSUE
AN EMERGENCY AUTHORIZATION FOR A NEW CLASS II INJECTION WELL WHERE A
SUBSTANTIAL DELAY IN PRODUCTION OF OIL OR GAS RESOURCES WILL OCCUR
UNLESS IT IS GRANTED. SUCH AUTHORIZATION MUST NOT RESULT IN THE
MOVEMENT OF FLUIDS INTO A USDW. THE AUTHORIZATION IS VALID ONLY DURING
THE TIME THE PERMIT APPLICATION IS BEING PROCESSED, PROVIDED THE
APPLICATION IS SUBMITTED WITHIN 90 DAYS, A PERIOD EPA CONSIDERS MORE
THAN AMPLE.
ONE COMMENTER NOTED THAT THE SEQUENCE OF PERMITTING STEPS AND
CONSTRUCTION FOR NEW WELLS WAS CONFUSING IN THE PROPOSAL. EPA AGREES
AND HAS MOVED A PARAGRAPH COVERING CONSTRUCTION REQUIREMENTS INTO THIS
SECTION FROM SECTIONS 146.12, 146.22, 146.32 AND 146.42. PERMITS ARE
ISSUED PRIOR TO CONSTRUCTION AND CONTAIN REQUIREMENTS WHICH GOVERN THE
CONSTRUCTION OF THE WELL. WELLS MUST BE IN COMPLIANCE WITH THESE
REQUIREMENTS BEFORE INJECTION BEGINS. CHANGES IN CONSTRUCTION PLANS
DURING CONSTRUCTION MAY BE APPROVED BY THE DIRECTOR AS MINOR
MODIFICATIONS. TO AVOID ANY UNNECESSARY DELAY IN PRODUCTION FOR NEW
FIELD WILDCAT WELLS, SECTION 122.40 HAS BEEN EXPANDED TO PERMIT THE
DIRECTOR TO ISSUE A TEMPORARY PERMIT FOR AN INJECTION WELL WHERE A
SUBSTANTIAL DELAY IN PRODUCTION OF OIL OR GAS RESOURCES WILL OCCUR
UNLESS TEMPORARY AUTHORIZATION IS GRANTED TO NEW CLASS II WELLS. SUCH
PERMIT MUST NOT RESULT IN THE MOVEMENT OF FLUIDS INTO A USDW. THE
TEMPORARY PERMIT IS VALID ONLY DURING THE TIME THE PERMIT APPLICATION IS
BEING PROCESSED.
THE PLUGGING AND ABANDONMENT CONDITION HAS BEEN REWRITTEN TO COVER
THE POSSIBILITY OF CONVERSIONS OF WELLS TO NEW USES RATHER THAN
ABANDONMENT. INJECTORS MUST NOTIFY THE DIRECTOR 180 DAYS IN ADVANCE OF
PLANS TO CONVERT OR ABANDON A WELL SO THAT THE DIRECTOR MAY REVIEW THE
PLUGGING AND ABANDONMENT PROCEDURES OR OTHERWISE ACT TO PREVENT
CONTAMINATION.
A NEW REQUIREMENT HAS BEEN ADDED THAT THE PERMITTEE RETAIN RECORDS ON
THE NATURE AND COMPOSITION OF INJECTED FLUIDS UNTIL AT LEAST FIVE YEARS
AFTER PLUGGING AND ABANDONMENT, AT WHICH TIME THE DIRECTOR MAY REQUIRE
THE PERMITTEE TO TURN OVER THE RECORDS. THIS PROVISION IS NECESSARY IN
ORDER TO ASSURE THAT IF CONTAMINATION OF A USDW IS DISCOVERED, THE
DIRECOTR WILL HAVE READY ACCESS TO RECORDS OF INJECTED FLUIDS WHICH
MIGHT BE NECESSARY TO TRACE THE ORIGIN AND DIRECTION OF FLOW OF THE
CONTAMINATING FLUIDS. EPA ENCOURAGES THE STATES TO ESTABLISH A SYSTEM
TO RETAIN THESE REOCRDS FOR AS LONG AS POSSIBLE.
WHILE SECTION 122.41 ITSELF PRESCRIBES PERMIT CONDITIONS, THIS
SECTION PRESCRIBES THE MANNER IN WHICH CERTAIN TYPES OF PERMIT
CONDITIONS MUST BE ESTABLISHED BY THE DIRECTOR WHEN ISSUING PERMITS.
THE SECTION IS ALSO INTENDED TO SERVE AS A COMPLETE CROSS-REFERENCE TO
THE APPLICABLE REQUIREMENTS OF 40 CFR PART 146, AS WELL AS OTHER
REQUIREMENTS OF PART 122, SUBPART C, WHICH MUST BE APPLIED THROUGH UIC
PERMIT ISSUANCE. MOST OF THE REQUIREMENTS REFERENCED IN THIS SECTION
ARE ACTUALLY ESTABLISHED ELSEWHERE, AND COMMENTS ON THOSE REQUIREMENTS
ARE DEALTH WITH IN CONNECTION WITH THE SECTIONS WHICH ESTABLISH THEM.
HOWEVER, SEVERAL REQUIREMENTS ESTABLISHED BY THIS SECTION DO NOT APPEAR
ELSEWHERE, AND ARE DISCUSSED BELOW.
CONSTRUCTION REQUIREMENTS AND PLUGGING AND ABANDONMENT PROCEDURES ARE
HANDLED THE SAME WAY. THE PERMIT APPLICANT MUST DEVELOP AND SUBMIT FOR
THE DIRECTOR'S APPROVAL PERMIT CONDITIONS NECESSARY TO ASSURE ADEQUATE
PLUGGING AND ABANDONMENT, OR TESTING, DRILLING, AND CONSTRUCTION. THE
DIRECTOR MAY ADOPT THE PROPOSED CONDITIONS OR PRESCRIBE OTHER
APPROPRIATE ONES. THE INJECTOR IS PRESUMABLY IN THE BEST POSITION TO
KNOW HOW THESE CONSTRUCTION-RELATED REQUIREMENTS CAN BEST BE TAILORED TO
THE INDIVIDUAL WELL SITE. THIS PROVISION WILL ENABLE THE DIRECTOR TO
TAKE ADVANTAGE OF THAT EXPERTISE, AS WELL AS GIVING THE APPLICANT AN
OPPORTUNITY TO SUGGEST OPTIMALLY EFFICIENT PERMIT REQUIREMENTS.
THIS SECTION ALSO INCLUDES FINANCIAL RESPONSIBILITY REQUIREMENTS.
THESE WERE PROPOSED AS SECTION 122.42(A)(7). THE PROPOSAL DID NOT
SPECIFY A DOLLAR AMOUNT FOR THE PERFORMANCE BOND OR OTHER INSTRUMENT,
BUT EACH WELL WOULD HAVE BEEN REQUIRED TO BE COVERED BY A FINANCIAL
RESPONSIBILITY INSTRUMENT. A NUMBER OF COMMENTS WERE RECEIVED. MANY OF
THESE COMMENTS ADDRESSED THE DOLLAR AMOUNTS OF FINANCIAL RESPONSIBILITY
INSTRUMENTS ALREADY REQUIRED UNDER SOME STATE LAWS, AND SUGGESTED THAT
APPLYING THESE AMOUNTS TO EACH WELL WOULD SHUT DOWN MANY MARGINAL WELL
OPERATIONS. IN CONSIDERATION OF THESE COMMENTS, EPA HAS REVISED THE
REGULATIONS TO GIVE THE DIRECTOR CLEAR DISCRETION TO APPROVE ANY FORM OF
FINANCIAL RESPONSIBILITY WHICH IS EQUIVALENT TO A PERFORMANCE BOND TO
CLOSE, PLUG, AND ABANDON THE WELL IN A MANNER PRESCRIBED BY THE
DIRECTOR.
THE DIRECTOR MIGHT CONCLUDE, FOR EXAMPLE, THAT THE APPLICANT'S
FINANCIAL STATEMENT SHOWING LARGE ASSETS SUFFICIENTLY PROVES THE
APPLICANT'S FINANCIAL STABILITY AND RELIABILITY. A STATE DIRECTOR MIGHT
REQUIRE AN APPLICANT TO SET UP AN ESCROW ACCOUNT WHERE AUTHORIZED BY
STATE LAW (BECAUSE OF FEDERAL STATUTES, THIS ALTERNATIVE IS NOT OPEN TO
A REGIONAL ADMINISTRATOR).
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 045 OF 225
COSTLE DM ADMINISTRATOR
EPA
113544
REGULATIONS
SIMILARLY, IF THE DIRECTOR REQUIRES A PERFORMANCE BOND, HE OR SHE MAY
AUTHORIZE AN OWNER OR OPERATOR CONTROLLING A LARGE NUMBER OF WELLS TO
POST A SINGLE INSTRUMENT OF FINANCIAL RESPONSIBILITY COVERING ALL WELLS
WITHIN A STATE. EPA CONSIDERED ESTABLISHING A MINIMUM DOLLAR AMOUNT FOR
PERFORMANCE BONDS COVERING ALL WELLS WITHIN A STATE. THIS DID NOT
APPEAR PRACTICABLE, HOWEVER, FOR TWO REASONS. FIRST, SUCH A FIXED
REQUIREMENT SEEMED INSONSISTENT WITH THE BROAD DISCRETION GRANTED TO THE
DIRECTOR TO APPROVE ALTERNATIVE METHODS OF ESTABLISHING FINANCIAL
RESPONSIBILITY. SECOND, NO DOLLAR AMOUNT COULD BE DEFINED WITH EPA
WOULD BE CONFIDENT WOULD BE ADEQUATE FOR ALL WELLS UNDER ALL
CIRCUMSTANCES, WITHOUT BEING PROHIBITIVELY HIGH FOR MOST CASES. THE
COSTS OF PLUGGING AND ABANDONMENT RANGE FROM $1500 FOR SOME CLASS II
WELLS TO AS MUCH AS $30,00-$40,000 OR MORE FOR SOME CLASS I WELLS. IN
MOST SITUATIONS, EPA BELIEVES THAT A $60,000 BOND WOULD BE SUFFICIENT
FOR AN OTHERWISE FINANCIALLY STABLE OWNER OR OPERATOR TO POST FOR A
NUMBER OF WELLS WITHIN A STATE. HOWEVER, THIS FIGURE IS ONLY GUIDANCE,
AND THE DIRECTOR IS FREE TO ESTABLISH A HIGHER OR LOWER FIGURE AS
CIRCUMSTANCES DICTATE.
SOME COMMENTERS CONTENDED THAT A BOND REQUIREMENT WOULD SHUT DOWN
MARGINAL AND STRIPPER WELLS. SUCH WELLS ARE OFTEN OPERATED BY LARGE
MULTINATIONAL CORPORATIONS WHICH SHOULD HAVE NO DIFFICULTY ESTABLISHING
FINANCIAL RESPONSIBILITY ABSENT A BOND. FOR SMALLER OPERATORS, THE
DIRECTOR WILL BE ABLE TO EMPLOY A SINGLE INSTRUMENT FOR ALL WELLS UNDER
THE OPERATOR'S CONTROL. THIS AUTHORITY IS EXPECTED TO REDUCE THE
ECONOMIC BURDEN TO THE LOWEST POSSIBLE POINT CONSISTENT WITH EFFECTIVE
REGULATION.
SOME COMMENTERS SUGGESTED THAT SOME OF THE TECHNICAL REQUIREMENTS OF
THESE REGULATIONS ARE NOT NECESSARY WHEN INJECTION TAKES PLACE FAR FROM
ANY POTENTIAL DRINKING WATER SOURCE AND WHERE THE FLUIDS ARE NOT LIKELY
TO MIGRATE INTO A USDW. EPA AGREES AND HAS ADDED LIMITED AUTHORITY TO
ALLOW THE DIRECTOR TO WAIVE THE TECHNICAL REQUIREMENTS FOR OPERATION,
MONITORING, AND REPORTING IN CASES WHERE THE RADIUS OF THE ZONE OF
ENDANGERING INFLUENCE IS A NEGATIVE NUMBER. IN CASES WHERE INJECTION
DOES NOT TAKE PLACE INTO, THROUGH OR ABOVE A USDW, THE DIRECTOR MAY ALSO
WAIVE REQUIREMENTS FOR AREA OF REVIEW, CONSTRUCTION AND MECHANICAL
INTEGRITY. THE DIRECTOR'S FACT SHEET UNDER PARAGRAPH (C) SHOULD EXPLAIN
NOT ONLY THE TECHNICAL BASIS FOR THE WAIVER UNDER THIS SECTION, BUT ALSO
WHY COMPLIANCE WITH THE REQUIREMENTS WOULD NOT BE FEASIBLE.
THIS SECTION HAS BEEN MOVED TO SUBPART A, SECTION 122.17.
THIS SECTION HAS BEEN EXTENSIVELY REWRITTEN BOTH FOR CLARITY AND
SUBSTANCE. SEVERAL COMMENTERS OBJECTED TO THE PROVISION IN THE PROPOSAL
THAT THE DIRECTOR SHALL PRESCRIBE STESP FOR CORRECTIVE ACTION BY NOTING
THAT THE IMPROPERLY COMPLETED WELLS MAY BE ON PROPERTY NOT OWNED BY THE
PERMITTEE. EPA HAS DETERMINED THAT NO EXCEPTION SHALL BE MADE FOR
SITUATIONS WHEN CORRECTIVE ACTION ON A THIRD PARTY'S LAND IS NECESSARY.
THE DIRECTOR MAY STILL PRESCRIBE SUCH STEPS, ALTHOUGH OF COURSE HE OR
SHE CAN NOT REQUIRE THAT A THIRD PARTY'S PROPERTY RIGHTS BE VIOLATED.
RATHER, IF AN INJECTOR CAN NOT WORK OUT AN AGREEMENT WITH A NEIGHBORING
LANDOWNER, THEN THE PERMIT MAY BE TERMINATED OR THE INJECTION WILL NOT
BE AUTHORIZED. HOWEVER, AN ADDITIONAL OPTION AVAILABLE TO THE DIRECTOR
IN SETTING CORRECTIVE ACTION REQUIREMENTS HAS BEEN EMPHASIZED. THIS
CONSISTS OF LIMITING INJECTION PRESSURE, AND MAY AVOID SHUTTING SOME
WELLS DOWN IN SITUATIONS WHERE OTHER CORRECTIVE ACTIONS ARE IMPOSSIBLE
BECAUSE OF CONFLICTING PROPERTY INTERESTS.
THE BURDEN AND ROLES OF THE APPLICANT OR PERMITTEE AND THE DIRECTOR
IN PROPOSING CORRECTIVE ACTION HAVE BEEN CLARIFIED. THE APPLICANT MUST
IDENTIFY WELLS WITHIN THE AREA OF REVIEW. THE APPLICANT MAY, BUT IS NOT
REQUIRED TO, INCLUDE A PLAN FOR CORRECTIVE ACTION IN THE APPLICATION.
IF NO SUCH PLAN IS INCLUDED, OR IF THE PLAN IS INADEQUATE, THE DIRECTOR
MAY REQUEST ONE, OR REQUIRE FURTHER INFORMATION. THE DIRECTOR THEN
PLACES CORRECTIVE ACTION REQUIREMENTS IN THE PERMIT.
SEVERAL OF THE PARAGRAPHS IN THE PROPOSAL COVERED THE HANDLING OF
MIGRATION OF FLUIDS INTO USDWS GENERALLY RATHER THAN COVERING ONLY
CORRECTIVE ACTION. THESE PROVISIONS HAVE BEEN MOVED INTO THE EXPANDED
GENERAL PROHIBITION AGAINST MOVEMENT OF FLUIDS INTO USDWS, NEW SECTION
122.34.
SOME COMMENTERS SUGGESTED THAT FRASCH WELLS SHOULD BE EXEMPTED FROM
CORRECTIVE ACTION REQUIREMENTS BECAUSE ECONOMICS PRECLUDE LEAKS IN SUCH
WELLS. IF THESE COMMENTERS ARE CORRECT, AND NO LEAKS ARE FOUND, THEN
CORRECTIVE ACTION WOULD OF COURSE NOT BE REQUIRED FOR EXISTING WELLS
(SEE 40 CFR PART 146 SUBPART D).
THIS SECTION IS INTENDED TO INTEGRATE THE REQUIREMENTS OF THESE
REGULATIONS WITH THOSE ISSUED UNDER RCRA FOR HAZARDOUS WASTE MANAGEMENT
FACILITIES. RCRA PROHIBITS DISPOSAL OF HAZARDOUS WASTES EXCEPT AT
FACILITIES WHICH ARE PERMITTED UNDER RCRA. IN ORDER TO AVOID NEEDLESS
DUPLICATIVE REGULATION OF THE SAME DISPOSAL ACTIONS UNDER TWO STATUTES,
SUBPART B OF THIS PART ESTABLISHES UNDER RCRA A PERMIT BY RULE FOR UIC
WELLS WHICH HOLD FINAL PERMITS UNDER AN APPROVED STATE UIC PROGRAM, OR A
FEDERAL PROGRAM. THE TWO PROGRAMS SHOULD BE CONSISTENT, HOWEVER.
ACCORDINGLY, THIS SECTION ESTABLISHES REQUIREMENTS SIMILAR TO THOSE
UNDER RCRA, BUT ADAPTS THOSE REQUIREMENTS TO THE PARTICULAR
CIRCUMSTANCES OF INJECTION WELLS.
THE MANIFEST SYSTEM HAS BEEN ADOPTED, WITHOUT CHANGE. HOWEVER,
FINANCIAL RESPONSIBILITY FOR UIC FACILITIES DIFFERS FROM THAT FOR
RCRA-PERMITTED FACILITIES. EPA BELIEVES THAT THE CIRCUMSTANCES ARE
FUNDAMENTALLY DIFFERENT. A PROPERLY SITED, DESIGNED AND OPERATED CLASS
I DISPOSAL WELL OFFERS LITTLE RISK OF LEAKAGE AND CONTAMINATION DURING
THE PERIOD OF INJECTION. THUS THE PRIMARY PURPOSE OF FINANCIAL
RESPONSIBILITY IS TO ENSURE PROPER PLUGGING AND ABANDONMENT. EPA
BELIEVES THIS CAN BE DONE MORE SIMPLY FOR UIC WELLS THAN FOR RCRA
FACILITIES AND HAS ACCORDINGLY LEFT THE DIRECTOR BROAD FLEXIBILITY.
SIMILARLY, PLUGGING AND ABANDONMENT FOR A UIC WELL IS DISSIMILAR TO
CLOSURE FOR A RCRA FACILITY. PLUGGING AND ABANDONMENT IS A CLOSE AS CAN
BE OBTAINED TO ASSURANCE THAT FLUIDS WILL NOT MIGRATE AND CONTAMINATE
DRINKING WATER SOURCES. FOR A UIC CLASS I WELL, OBSERVANCE OF PROPER
OPERATING AND PRESSURE MONITORING PRACTICES PROVIDE ASSURANCE AGAINST
MIGRATION AND CONTAMINATION OF USDWS. AFTER THE WELL IS PLUGGED, THE
PLUGGING OPERATION LEAVES AN IMPERMEABLE BARRIER BETWEEN THE INJECTION
ZONE AND ANY USDW. THUS POST CLOSURE MONITORING WELLS AND OTHER
POST-CLOSURE MAINTENANCE REQUIRED UNDER RCRA ARE UNNECESSARY. FOR A HWM
FACILITY, CLOSURE IS ONLY THE BEGINNING OF NECESSARY EXTENSIVE POST
CLOSURE MONITORING AND PROTECTION. THUS PLUGGING AND ABANDONMENT IS ALL
THAT THESE REGULATIONS REQUIRE OF WELLS INJECTING HAZARDOUS WASTE.
HOWEVER, COMPLETION OF REQUIRED PROCEDURES MUST BE CERTIFIED BY AN
INDEPENDENT REGISTERED PROFESSIONAL ENGINEER. RCRA NOTIFICATION AND
TRAINING REQUIREMENTS APPLY WITHOUT CHANGE TO UIC WELLS.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 046 OF 225
COSTLE DM ADMINISTRATOR
EPA
113545
REGULATIONS
OTHER UIC PROGRAM REQUIREMENTS ARE EQUIVALENT TO THEIR RCRA
COUNTERPARTS. FOR EXAMPLE, OWNERS OR OPERATORS OF CLASS I WELLS ARE
REQUIRED TO ANALYZE INJECTED FLUIDS OFTEN ENOUGH TO YIELD REPRESENTATIVE
DATA ON ITS CHARACTERISTICS (SECTION 146.13(B)(1)). THEY MUST REGULARLY
MONITOR AND REPORT TO THE DIRECTOR INJETION PRESSURE, FLOW RATE AND
VOLUME, ANNULAR PRESSURE, AND ANY OTHER INFORMATION WHICH MIGHT INDICATE
MOVEMENT OF FLUIDS OUT OF THE INJECTION ZONE (SECTION 146.13(C)). IF
THE WELL LEAKS OR OTHERWISE CAUSES MOVEMENT OF FLUIDS INTO USDWS, IT
MUST BE REPAIRED. TO THE EXTENT THAT THESE WELLS PRESENT THE HAZARDS OF
EXPLOSION OR OTHER SUDDEN INCIDENTS REQUIRING EMERGENCY EQUIPMENT OR
CONTINGENCY PLANS UNDER RCRA, THESE HAZARDS WILL BE ASSOCIATED WITH
SURFACE FACILITIES, WHICH CONTINUE TO BE SUBJECT TO RCRA EVEN THOUGH
THEY ARE AT THE SITE OF AN INJECTION WELL.
IN ORDER TO ASSURE PROMPT APPLICATION OF CONTROLS UNDER THE UIC
PROGRAM, OWNERS AND OPERATORS OF UIC WELLS INJECTING HAZARDOUS WASTES
MUST APPLY FOR A PERMIT WITHIN SIX MONTHS OF PROGRAM APPROVAL.
SUBPART D OF PART 122 CONTAINS REQUIREMENTS WHICH ARE FOR THE MOST
PART IDENTICAL TO THOSE IN PART 122 OF THE FINAL NPDES REGULATIONS,
PUBLISHED ON JUNE 7, 1979 (44 FR 32854). SUBPART D ALSO CONTAINS THE
DEADLINES FOR REQUEST FOR VARIANCES FROM EFFLUENT LIMITATIONS
(PREVIOUSLY IN SECTION 124.51 OF THE NPDES REGULATIONS). THE AGENCY
RECEIVED A LARGE VOLUME OF COMMENTS ON THESE PROVISIONS. MANY OF THESE
COMMENTS EITHER REPEATED OR INCORPORATED BY REFERENCE THE COMMENTS
PREVIOUSLY MADE ON THE NPDES REGULATIONS WHICH BECAME FINAL ON JUNE 7,
1979. EPA FEELS THAT COMMENTS THAT WERE MADE DURING THE COMMENT PERIOD
FOR THE JUNE 7, 1979 REGULATION HAVE BEEN ADEQUATELY CONSIDERED AND
ADDRESSED IN THE PREAMBLE TO THOSE REGULATIONS. EPA HAS CONSIDERED ONLY
THOSE COMMENTS ON THE NPDES REGULATIONS WHICH RAISED NEW ISSUES. SOME
CHANGES HAVE BEEN MADE AS A RESULT OF COMMENTS AND OF CONSOLIDATION, AS
DISCUSSED BELOW.
SUBPART D NOW INCORPORATES REGULATIONS PROPOSED SEPARATELY ON JUNE
14, 1979 (44 FR 34393). THE INCORPORATED REGULATIONS ACCOMPANIED THE
DRAFT CONSOLIDATION APPLICATION FORMS (44 FR 34346) AND ARE INTENDED TO
IMPROVE CONTROL OF TOXIC POLLUTANT DISCHARGES UNDER THE NPDES PROGRAM.
CHANGES FROM THE PROPOSAL INCLUDE SPECIFICATION OF THE CONTENTS OF THE
NEW NPDES APPLICATION FORM, NEW DUTIES TO REPORT CERTAIN POLLUTANTS, AND
ACCOMPANYING REQUIREMENTS FOR ESTABLISHING PERMIT CONDITIONS. THE
REGULATIONS APPEAR NOW IN SECTIONS 122.53, 122.62, 122.63, AND APPENDIX
D, AND ARE DISCUSSED IN DETAIL IN THE PREAMBLE TO THE FINAL CONSOLIDATED
APPLICATION FORMS PUBLISHED ELSEWHERE IN TODAY'S FEDERAL REGISTER. THE
MAJOR CHANGES FROM THE PROPOSAL ARE SUMMARIZED IN THIS PREAMBLE IN THE
APPROPRIATE SECTIONS.
EPA HAS EXPANDED SECTION 122.51, PURPOSE AND SCOPE, TO INCLUDE
PROPOSED SECTIONS 122.62 (LAW AUTHORIZING NPDES PERMITS) AND 122.63
(EXCLUSIONS). THE NEW SECTION, IN LINE WITH OTHER SUBPARTS, CONTAINS A
PARAGRAPH OUTLINING THE SCOPE OF THE NPDES PERMIT PROGRAM. THE
"SPECIFIC INCLUSIONS" LIST DISCHARGES THAT REQUIRE NPDES PERMITS,
ALTHOUGH THE LIST IS NOT EXCLUSIVE.
EPA HAS ADDED A NEW "SPECIFIC EXCLUSION," SECT ION 122.51 (C)(2)(IV),
WHICH DEALS WITH THE NEED TO DISCHARGE CHEMICALS AND OTHER MATERIALS TO
COUNTER THE EFFECTS OF SUDDEN HAZARDOUS DISCHARGES. THE PROVISION
EXEMPTS ANY DISCHARGE MADE IN COMPLIANCE WITH THE INSTRUCTIONS OF AN
ON-SCENE COORDINATOR. THE COORDINATOR IS A FEDERAL OFFICIAL DESIGNATED
BY EPA OR THE U.S. COAST GUARD TO DIRECT FEDERAL DISCHARGE REMOVAL
EFFORTS AT THE SCENE OF AN OIL OR HAZARDOUS SUBSTANCE DISCHARGE
ACCORDING TO REGIONAL CONTINGENCY PLANS. THE EXEMPTION IS NECESSARY
BECAUSE THE NPDES PERMIT PROCESS IS INAPPROPRIATE FOR DISCHARGES
REQUIRED BY A FEDERAL OFFICIAL IN THIS CONTEXT.
ANOTHER NEW EXCLUSION, SECTION 122.51(C)(VI), LISTS RETURN FLOWS FROM
IRRIGATED AGRICULTURE AS EXEMPT FROM THE NPDES PERMIT REQUIREMENT. THIS
DOES NOT REPRESENT A CHANCE IN POLICY; IRRIGATION RETURN FLOWS ARE ALSO
EXCLUDED FROM THE DEFINITION OF POINT SOURCE IN THESE AND THE PRIOR
FINAL NPDES REGULATIONS AS REQUIRED BY SECTION 502(14) OF CWA. IT IS
ADDED HERE FOR CLARITY.
PROPOSED SECTION 122.67(I) (NOW SECTION 122.52(I)) INCLUDED THE TERMS
"EFFLUENT LIMITATION SEGMENT" AND "WATER QUALITY SEGMENT," WHICH WERE
DEFINED IN 40 CFR SECTION 130.2(A)(1) AND (A) (2). BECAUSE THOSE
REGULATIONS HAVE BEEN SUPERSEDED, WE HAVE DELETED THE TWO TERMS. THE
PROVISION NOW IMPLEMENTS SECTION 303(D) AND 303(E) OF CWA BY PROHIBITING
PERMITS FOR A NEW SOURCE OR NEW DISCHARGER IF ITS DISCHARGE WILL CAUSE
OR CONTRIBUTE TO THE VIOLATION OF A WATER QUALITY STANDARD. A NEW
SOURCE OR NEW DISCHARGER PROPOSING TO DISCHARGE INTO A WATER SEGMENT
THAT DOES NOT NOW MEET WATER QUALITY STANDARDS OR IS NOT EXPECTED TO
MEET THOSE STANDARDS EVEN AFTER THE APPLICATION OF THE EFFLUENT
LIMITATIONS REQUIRED BY SECTION 301(B )(1)(A) AND 301(B)(1)(B) OF CWA,
AND FOR WHICH A POLLUTANT LOAD ALLOCATION HAS BEEN PERFORMED, MAY
RECEIVE A PERMIT IF IT SHOWS THAT SUFFICIENT POLLUTANT LOAD ALLOCATIONS
TO ALLOW FOR THE DISCHARGE REMAIN AND THAT EXISTING DISCHARGERS INTO THE
SEGMENT ARE SUBJECT TO COMPLIANCE SCHEDULES DESIGNED TO ELIMINATE THE
SEGMENT'S NONCOMPLIANCE WITH WATER QUALITY STANDARDS.
MANY COMMENTERS OBSERVED THAT NO CRITERIA WERE PROVIDED BY THE AGENCY
FOR DETERMINING "ENTITLEMENT" TO POLLUTANT LOAD ALLOCATIONS. UPON
RECONSIDERATION, WE AGREE THAT IT WOULD BE ALMOST IMPOSSIBLE TO PROVE
"ENTITLEMENT;" THUS, WE HAVE DELETED THE REQUIREMENT THAT THE APPLICANT
DEMONSTRATE THE FACILITY'S ENTITLEMENT TO THE REMAINING POLLUTANT LOAD
ALLOCATION. IN ADDITION, THE REQUIREMENT THAT A DISCHARGER DEMONSTRATE,
AT THE TIME OF APPLYING FOR A PERMIT, THAT THERE ARE SUFFICENT REMAINING
POLLUTANT LOAD ALLOCATIONS TO ALLOW FOR THE DISCHARGE HAS BEEN CHANGED
TO ALLOW THE DEMONSTRATION TO BE MADE AT ANY TIME BEFORE THE CLOSE OF
THE PUBLIC COMMENT PERIOD. THIS CHANGE WAS MADE IN RESPONSE TO COMMENTS
THAT COMPLIANCE WITH THE PROPOSED REGULATION WOULD BE UNDULY BURDENSOME
AND THAT THE INFORMATION NECESSARY TO MAKE THE REQUIRED DEMONSTRATION,
IN MANY CASES, WOULD NOT BE READILY AVAILABLE TO THE DISCHARGER AT THE
TIME OF APPLICATION.
(1) NEW APPLICATION REQUIREMENT. PROPOSED SECTION 122.64(B) REQUIRED
EXISTING PERMITTEES TO SUBMIT A NEW APPLICATION AUTOMATICALLY WHEN
CERTAIN FACILITY CHANGES WOULD EITHER RESULT IN NEW OR SUBSTANTIALLY
INCREASED DISCHARGES OR A CHANGE IN THE NATURE OF THE DISCHARGE, OR
VIOLATE THE CONDITIONS OF THE PERMIT. COMMENTERS ARGUED THAT THIS WOULD
BE UNDULY BURDENSOME BECAUSE OF THE DETAILED TESTING REQUIREMENTS WHICH
ARE LIKELY TO BE A PART OF THE NEW CONSOLIDATED APPLICATION FORMS. EPA
AGREES THAT THIS SUBPARAGRAPH IS UNNECESSARY FOR THREE REASONS: (1) THE
REGULATIONS NOW REQUIRE THE PERMITTEE TO NOTIFY THE DIRECTOR OF PLANNED
ALTERATIONS OR ADDITIONS TO THE PERMITTED FACILITY AS SOON AS POSSIBLE
(SECTION 122.7(L)(1); (2) APPLICATION BASED NOTIFICATION REQUIREMENTS
HAVE BEEN ESTABLISHED FOR TOXIC POLLUTANTS (SECTION 122.61(A); AND (3)
SECTION 124.5 GIVES THE DIRECTOR AUTHORITY TO REQUEST AN UPDATED
APPLICATION FROM THE PERMITTEE, IF NECESSARY, WHERE CAUSE EXISTS TO
MODIFY OR REVOKE AND REISSUE A PERMIT. THUS, THIS SUBPARAGRAPH HAS BEEN
DELETED.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 047 OF 225
COSTLE DM ADMINISTRATOR
EPA
113546
REGULATIONS
(2) FINAL SECTION 122.53(C) PHASES IN THE NEW APPLICATION
REQUIREMENTS WHICH HAVE BEEN PROMULGATED TODAY, (SEE SECTIONS 122.4(D),
122.53(D) AND 122.53(E) FOR EXISTING DISCHARGERS OTHER THAN POTWS.
THESE NEW REQUIREMENTS APPLY TO (1) ANY SUCH DISCHARGER WHOSE EXISTING
PERMIT EXPIRES AFTER NOVEMBER 30, 1980 AND (2) ANY SUCH DISCHARGER WHOSE
PERMIT EXPIRES ON OR BEFORE NOVEMBER 30, 1980 BUT WHO HAS NOT SUBMITTED
AN APPLICATION PRIOR TO APRIL 30, 1980, THE APPROXIMATE DATE THESE
REGULATIONS BECOME PUBLIC. THE REASON FOR DISTINGUISHING BETWEEN THESE
TWO GROUPS IS DISCUSSED BELOW:
THE SCHEDULE FOR PHASING IN THE NEW APPLICATION REQUIREMENTS HAS BEEN
SET AFTER CONSIDERATION OF SEVERAL FACTORS. ON ONE HAND, IT IS
DESIRABLE TO MAKE THE REQUIREMENT EFFECTIVE AS EARLY AS POSSIBLE SO THAT
THE NEWLY-REQUIRED INFORMATION ON TOXIC DISCHARGES IS MADE AVAILABLE TO
PERMIT WRITERS. ON THE OTHER HAND, AS SOME COMMENTERS HAVE NOTED,
APPLICANTS MUST HAVE AMPLE TIME TO SAMPLE AND ANLYZE THEIR WASTE STREAMS
FOR TOXIC POLLUTANTS. A FURTHER CONSIDERATION IS THE EFFECT OF SECTION
122.10(B) OF THE FINAL NPDES REGULATIONS (NOW INCORPORATED, WITH
CHANGES, INTO SECTION 122.53(C)). THE REGULATION (PROPOSED IN THE
CONSOLIDATED PERMIT REGULATIONS AS SECTION 122.64(B)) REQUIRED
APPLICANTS FOR EPA-ISSUED PERMITS TO REAPPLY AT LEAST 180 DAYS PRIOR TO
PERMIT EXPIRATION. (MANY NPDES STATES HAVE SIMILAR RULES.) THUS
PERMITTEES WHOSE PERMITS ARE DUE TO EXPIRE BEFORE NOVEMBER 30, 1980 HAD
TO SUBMIT APPLICATIONS TO EPA BY JUNE 3, 1980. IT WOULD BE UNFAIR TO
REQUIRE DISCHARGERS IN THIS GROUP WHO HAVE ALREADY APPLIED TO APPLY ONCE
AGAIN FOR THE SAME PERMIT.
BASED UPON THE ABOVE CONSIDERATIONS, EPA DECIDED TO PHASE IN THE NEW
APPLICATION REQUIREMENTS BEGINNING WITH THOSE DISCHARGERS WHOSE PERMITS
EXPIRE AFTER APPROXIMATELY SIX MONTHS FROM WHEN THESE REGULATIONS ARE
PROMULGATED, I.E., AFTER NOVEMBER 30, 1980. APPLICANTS WHOSE PERMITS
EXPIRE BEFORE THAT DATE WILL IN MOST CASES HAVE ALREADY APPLIED UNDER
THE OLD REQUIREMENTS. THEY NEED NOT REAPPLY EXCEPT THAT THOSE WHOSE
PERMITS EXPIRE BEFORE NOVEMBER 30, 1980, BUT WHO HAVE NOT YET APPLIED BY
APRIL 30, 1980 ARE REQUIRED TO APPLY UNDER THE NEW REQUIREMENTS.
DISCHARGERS WHOSE PERMITS EXPIRE AFTER NOVEMBER 30, 1980 MUST COMPLY
WITH THE NEW APPLICATION REQUIREMENTS, EVEN IF THEY HAVE ALREADY APPLIED
FOR PERMIT RENEWAL. IT WOULD BE INAPPROPRIATE TO EXCLUDE THESE
APPLICANTS FROM THE NEW REQUIREMENTS SIMPLY BECAUSE THEY HAVE SUBMITTED
APPLICATIONS UNUSUALLY EARLY.
TO ALLOW APPLICANTS SUFFICIENT TIME TO APPLY UNDER THE NE
REQUIREMENTS, EPA IS TEMPORARILY RELAXING ITS GENERAL REQUIREMENTS THAT
APPLICANTS SUBMIT APPLICATIONS AT LEAST 180 DAYS BEFORE PERMIT
EXPIRATION. THE RULE WILL INITIALLY BE WAIVED AND THEN GRADUALLY PHASED
BACK IN ACCORDANCE WITH THE TABLE IN SECTION 122.53(C).
EPA RECOGNIZES THAT IN SOME SITUATIONS, DESPITE THE RELAXATION OF THE
180-DAY RULE, SOME APPLICANTS MAY NOT BE ABLE TO SAMPLE AND ANALYZE
THEIR WASTE STREAMS AND SUBMIT THE RESULTS BY THE APPLICATION DEADLINES.
THEREFORE, APPLICANTS WHOSE PERMITS EXPIRE BEFORE JUNE 1, 1981 MAY
APPLY FOR TIME EXTENSIONS TO SUBMIT THAT DATA. HOWEVER, THE EXTENSION
MUST BE LIMITED TO A MAXIMUM OF SIX MONTHS AND MUST NOT GO BEYOND JUNE
30, 1981. THESE LIMITATIONS ARE NECESSARY TO ENSURE THAT PERMIT
ISSUANCE AND COMPLIANCE WILL MEET THE STATUTORY JULY 1, 1984 DEADLINE OF
CWA SECTION 301(B).
(2) INFORMATION REQUIREMENTS. SECTION 122.53(D) LISTS THE
INFORMATION WHICH EXISTING INDUSTRIAL NPDES PERMIT APPLICANTS MUST
SUPPLY TO THE DIRECTOR IN ADDITION TO THE INFORMATION LISTED IN SECTION
122.4(D). DISCHARGERS APPLYING TO EPA FOR THEIR PERMITS WILL SUPPLY
THIS INFORMATION ON FORM 2C OF THE CONSOLIDATED APPLICATION FORMS.
DISCHARGERS APPLYING TO STATES FOR PERMITS WILL USE STATE APPLICATION
FORMS, WHICH MAY BE DIFFERENT FROM EPA'S FORM; HOWEVER SECTION 123.7(D)
REQUIRES STATE FORMS TO INCLUDE AT LEAST THE INFORMATION LISTED IN
SECTION 122.53(D).
ADDITIONS TO SECTION 122.53 WERE PROPOSED ALONG WITH A PUBLIC NOTICE
OF THE DRAFT CONSOLIDATED PERMIT APPLICATION FORMS AS PART III OF THE
JUNE 14, 1979 FEDERAL REGISTER (44 FR 34346). A DETAILED DISCUSSION OF
THE SIGNIFICANT COMMENTS RECEIVED ON THE PROPOSAL AND EPA'S RESPONSES
APPEARS IN THE PREAMBLE TO THE PUBLIC NOTICE OF THE CONSOLIDATED
APPLICATION FORMS PUBLISHED ELSEWHERE IN TODAY'S FEDERAL REGISTER. THE
MAJOR CHANGES FROM THE PROPOSAL ARE SUMMARIZED AS FOLLOWS:
(I) THE SECTIONS OF THE REGULATIONS LISTING INFORMATION TO BE
PROVIDED BY ALL APPLICANTS HAVE BEEN MOVED TO SUBPART A OF PART 122,
DISCUSSED ABOVE AT SECTION 122.4(D).
(II) A NEW PARAGRAPH HAS BEEN ADDED (SECTION 122.53(D)(1) WHICH
REQUIRES APPLICANTS TO LIST THE LATITUDE AND LONGITUDE OF EACH OUTFALL
AND THE NAME OF THE RECEIVING WATER.
(III) THE REQUIREMENT FOR SUBMISSION OF A LINE DRAWING WITH A WATER
BALANCE (SECTION 122.53(D)(2), PROPOSED AS SECTION 122.64(D)(9) HAS BEEN
MODIFIED TO INDICATE THAT FLOWS MAY BE ESTIMATED AND THAT MULTIPLE
OPERATIONS MAY BE INDICATED AS A SINGLE UNIT. ALSO, WHEN A WATER
BALANCE CANNOT BE DETERMINED, APPLICANTS MAY PROVIDE A PICTORIAL
DESCRIPTION OF THE SOURCE, USE, AND TREATMENT OF WATER.
(IV) THE REQUIREMENT TO DESCRIBE FLOW, PROCESSES CONTRIBUTING
WASTEWATER, AND TREATMENT UNITS (SECTION 122.53(D)(3), PROPOSED AS
SECTION 122.64(D)(10) AND (14) HAS BEEN SIMPLIFIED BY DELETING THE
REQUIREMENT FOR REPORTING MAXIMUM FLOWS FOR TYPES OF WASTEWATER,
INCLUDING STORM RUNOFF. THE NEW SUBPARAGRAPH ALSO STATES PROCESSES MAY
BE DESCRIBED IN GENERAL TERMS. TWO REQUIREMENTS HAVE ALSO BEEN ADDED;
APPLICANTS MUST LIST THE AVERAGE FLOW OF WASTEWATER CONTRIBUTED BY EACH
PROCESS, AND PRIVATELY-OWNED TREATMENT WORKS MUST IDENTIFY ALL USERS
(SEE FURTHER DISCUSSION CONTAINED IN THE PREAMBLE TO THE CONSOLIDATED
APPLICATION FORM IN TODAY'S FEDERAL REGISTER).
(V) THE REQUIREMENT TO LIST THE PRODUCTION OR OTHER MEASURE OF
OPERATION (E.G., RAW MATERIALS CONSUMED, PRODUCTS MANUFACTURED) USED IN
ANY APPLICABLE EFFLUENT GUIDELINE, (SECTION 122.53(D)(5), PROPOSED
SECTION 122.64(D)(8)), HAS BEEN MODIFIED TO REQUIRE LISTING OF ONLY A
MAXIMUM MEASURE OF ACTUAL PRODUCTION AS REQUIRED BY SECTION
122.63(D)(2).
(VI) THE ANALYTICAL TESTING REQUIREMENTS HAVE BEEN MODIFIED IN A
NUMBER OF WAYS (SECTION 122.53(D)(7), PROPOSED SECTION 122.64 (D)(16)):
1. THE LIST OF POLLUTANTS (SECTION 122.53(D)(7)(I)) FOR WHICH ALL
APPLICANTS MUST TEST NOW INCLUDES AMMONIA, AND NO LONGER INCLUDES
CYANIDE, TOTAL PHENOLS, AND TOTAL KJELDAHL NITROGEN.
2. THE LIST OF ORGANIC TOXIC POLLUTANTS FOR WHICH PRIMARY INDUSTRIES
MUST TEST IN PROCESS WASTEWATER HAS BEEN SPECIFIED FOR EACH OF THE 34
PRIMARY CATEGORIES (SEE TABLE II IN APPENDIX D TO PART 122, SUBPART D).
(IN THE CASE OF 2,3,7,8 TETRACHLORODIBENZO-P-DIOXIN, (TCDD), THE TESTING
REQUIREMENT DEPENDS ON THE APPLICANT'S USE OR PRODUCTION OF A SPECIFIC
LIST OF CHEMICALS POTENTIALLY CONTAMINATED WITH TCDD.) THE ORGANIC TOXIC
POLLUTANTS ARE SPECIFIED BY THE FOUR FRACTIONS TESTED BY THE GAS
CHROMOTOGRAPHY/MASS SPECTROMETRY ANALYTICAL METHOD. ALL PRIMARY
APPLICATNS MUST TEST FOR CYANIDE, TOTAL PHENOLS, AND THE METALS ON THE
TOXICS LIST. ALSO, ALL APPLICANTS MUST TEST FOR ANY TOXIC POLLUTANT
THEY EXPECT TO BE PRESENT.
3. THE LIST OF POLLUTANTS FOR WHICH APPLICANTS MUST INDICATE
EXPECTED PRESENCE OR ABSENCE NOW INCLUDES TOTAL ORGANIC NITROGEN, AND NO
LONGER INCLUDES AMMONIA, ASBESTOS, OR ADDITIONAL PESTICIDES (SEE TABLE
IV IN APPENDIX D TO PART 122, SUBPART D).
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 048 OF 225
COSTLE DM ADMINISTRATOR
EPA
113547
REGULATIONS
ALSO, APPLICANTS WHO INDICATE THAT A POLLUTANT ON THIS LIST (WHICH
INCLUDES ALL OF THE TOXIC POLLUTANTS EXCEPT ASBESTOS) IS PRESENT MUST
NOW TEST FOR THAT POLLUTANT, WHILE THE PROPOSAL ALLOWED AN ESTIMATE.
4. A LIST HAS BEEN ADDED OF POLLUTANTS FOR WHICH APPLICANTS
MUST INDICATE THE REASONS FOR THE PRESENCE OF ANY EXPECTED
POLLUTANTS (SEE TABLE V IN APPENDIX D TO PART 122, SUBPART D).
THIS LIST INCLUDES ASBESTOS AND 73 HAZARDOUS SUBSTANCES.
(VII) A PARAGRAPH HAS BEEN ADDED (SECTION 122.53(D)(8)) WHICH EXEMPTS
APPLICANTS QUALIFYING AS SMALL BUSINESSES FROM SUBMITTING ANALYSES FOR
ANY ORGANIC TOXIC POLLUTANTS.
(VIII) A PARAGRAPH HAS BEEN ADDED (SECTION 122.53(D)(9) AND (10))
REQUIRING APPLICANTS TO: (1) LIST ANY TOXIC POLLUTANTS WHICH THEY USE
OR MANUFACTURE; AND (2) DESCRIBE ANY DISCHARGES OF POLLUTANTS THEY
EXPECT TO EXCEED THE MAXIMUM VALUES REPORTED THROUGH TESTING.
(IX) THE REQUIREMENTS CONCERNING BEST MANAGEMENT PRACTICES (BMP)
PLANS AND POTENTIAL DISCHARGES OF TOXIC POLLUTANTS OR HAZARDOUS
SUBSTANCES NOT THROUGH OUTFALLS HAS BEEN DELETED (PROPOSED SECTION
122.64(D)(12) AND (13)).
(X) THE PARAGRAPH REQUIRING REPORTING OF ADDITIONAL CHEMICAL TESTING
RESULTS HAS BEEN DELETED (PROPOSED SECTION 122.64(D) (18)).
(XI) THE PARAGRAPH ALLOWING APPLICANTS THE OPTION OF REPORTING
INFORMATION TO OBTAIN EXCLUSIONS FROM THE REQUIREMENTS AND PENALTIES OF
SECTION 311 OF CWA HAS BEEN DELETED (PROPOSED SECTION 122.64(D)(19)).
(XII) THE REQUIREMENT TO REPORT ANY PREVIOUS BIOLOGICAL TOXICITY
TESTS (PROPOSED SECTION 122.64(D)(18), NOW SECTION 122.53(D)(11)) HAS
BEEN MODIFIED TO DELETE THE REQUIREMENT TO REPORT THE RESULTS OF THE
TEST.
(XIII) THE REQUIREMENT TO REPORT THE IDENTITY OF LABORATORIES
PERFORMING ANY REPORTED ANALYSES (SECTION 122.53(D)(12)), HAS BEEN
ADDED, AND MODIFIED TO REQUIRE IDENTIFICATION OF WHICH POLLUTANTS WERE
ANALYZED BY THE LABORATORIES.
(XIV) THE PARAGRAPH ALLOWING THE DIRECTOR TO REQUIRE ADDITIONAL
INFORMATION FROM AN APPLICANT (PROPOSED SECTION 122.64(D)(20), NOW
SECTION 122.53(D)(13)) HAS BEEN MODIFIED BY ADDING THE WORD
"REASONABLY."
SECTION 122.53(E) DEALS WITH CONCENTRATED ANIMAL FEEDING OPERATIONS
AND AQUATIC ANIMAL PRODUCTION FACILITIES. IT LISTS THE INFORMATION
WHICH PERMIT APPLICANTS MUST SUPPLY TO THE DIRECTOR IN ADDITION TO THE
INFORMATION LISTED IN SECTION 122.4(D). APPLICANTS APPLYING TO EPA FOR
THEIR PERMITS WILL SUPPLY THIS INFORMATION ON FORM 2B OF THE
CONSOLIDATED APPLICATION FORMS. APPLICANTS APPLYING TO STATES FOR
PERMITS WILL USE STATE APPLICATION FORMS, WHICH MAY BE DIFFERENT FROM
EPA'S FORM; HOWEVER, SECTION 123.7(D) REQUIRES STATE FORMS TO INCLUDE
AT LEAST THE INFORMATION LISTED IN SECTION 122.53(E).
FORM 2B WAS PUBLISHED AS A PART OF THE PUBLIC NOTICE OF THE DRAFT
CONSOLIDATED PERMIT APPLICATION FORMS, IN PART III OF THE JUNE 14, 1979
FEDERAL REGISTER (44 FR 34346). HOWEVER, THE CORRESPONDING REGULATIONS
WERE INADVERTENTLY OMITTED FROM THE PROPOSED APPLICATION REGULATIONS (44
FR 39393, JUNE 14, 1979). THE FINAL REGULATIONS CORRESPOND TO THE FINAL
FORM 2B, WHICH IS PUBLISHED ELSEWHERE IN TODAY'S FEDERAL REGISTER; THE
COMMENTS RECEIVED AND THE CHANGES MADE ARE DISCUSSED AS A PART OF THAT
PREAMBLE. THE REGULATIONS REQUIRE APPLICANTS TO PROVIDE THE FOLLOWING
INFORMATION:
(I) FOR CONCENTRATED ANIMAL FEEDING OPERATIONS, A DESCRIPTION OF THE
SIZE OF THE OPERATION AND OF THE WASTE CONTROL SYSTEM.
(II) FOR CONCENTRATED AQUATIC ANIMAL PRODUCTION FACILITIES,
A DESCRIPTION OF THE WATER USE AND OF THE SIZE OF THE OPERATION.
TWO PARAGRAPHS HAVE BEEN ADDED TO SECTION 122.53, BUT ARE NOW
RESERVED FOR FUTURE PUBLICATION OF THE APPLICATION REQUIREMENTS FOR
POTWS AND FOR NEW SOURCES. THIS MATERIAL WILL BE PROPOSED DURING THE
SUMMER OF 1980 (SECTION 122.53(F) AND (G).
(4) NEW SOURCE APPLICATIONS AND VARIANCE REQUESTS. CERTAIN
REQUIREMENTS FROM PART 124 OF THE FINAL NPDES REGULATIONS FOR
APPLICATIONS FROM NEW SOURCES AND REQUESTS FOR VARIANCES WERE MOVED TO
THE APPLICATION SECTION OF PART 122, SUBPART D IN THE PROPOSAL. FINAL
SECTIONS 122.53(H), (I), (J) AND (K) INCLUDE THESE REQUIREMENTS WITH
SOME REWORDING, BUT NO SUBSTANTIVE CHANGES. ALSO, THE DEFINITION OF
VARIANCE IN SECTION 122.3 HAS BEEN AMENDED TO INCLUDE ALL MODIFICATIONS
AND VARIANCES SPECIFICALLY AUTHORIZED BY THE CLEAN WATER ACT.
THEREFORE, THE TERM "VARIANCE" CAN BE USED FOR ALL PERMIT CONDITIONS,
BASED ON THESE CWA PROVISIONS, AND THE TERM "MODIFICATION" RESERVED FOR
PERMIT MODIFICATIONS UNDER SECTION 124.5
FINAL SECTION 122.53(K) NOW SPECIFICALLY ALLOWS THE DRAFT OR FINAL
PERMIT TO CONTAIN, ALONG WITH THE APPLICABLE LIMITATION, THE ALTERNATIVE
LIMITATIONS WHICH MAY BECOME EFFECTIVE AUTOMATICALLY UPON GRANT OF THE
VARIANCE.
THE DETAILED CRITERIA FOR DETERMINING WHETHER FACILITIES ARE
"CONCENTRATED ANIMAL FEEDING OPERATIONS," (SECTION 122.54, PROPOSED
SECTION 122.76), OR "CONCENTRATED AQUATIC ANIMAL PRODUCTION FACILITIES,"
(SECTION 122.55, PROPOSED SECTION 122.77) REQUIRED TO OBTAIN PERMITS,
HAVE BEEN MOVED FROM THE TEXT AND PLACED IN APPENDICES B AND C,
RESPECTIVELY, TO ALLOW SMOOTHER READING OF THE REGULATIONS.
SECTION 122.57(B) (PROPOSED SECTION 122.79(B) DEFINES A "SEPARATE
STORM SEWER" AS A CONVEYANCE USED PRIMARILY FOR COLLECTING STORM WATER
RUNOFF, WHICH IS EITHER LOCATED IN AN URBANIZED AREA OR DESIGNATED
(NORMALLY BECAUSE IT IS A SIGNIFICANT CONTRIBUTOR OF POLLUTION) AS A
SEPARATE STORM SEWER. EPA DOES NOT CONSIDER STORM SEWERS WHICH DO NOT
FALL UNDER THIS DEFINITION (I.E., RURAL STORM SEWERS OR THOSE NOT
DESIGNATED) TO BE POINT SOURCES SUBJECT TO NPDES PERMIT REQUIREMENTS
UNLESS THE STORM WATER RUNOFF IS CONTAMINATED (SEE SECTION
122.57(B)(3)). THE FORMER NPDES REGULATIONS HAD A COMMENT TO THAT
EFFECT, SEE 40 CFR SECTION 125.52(A)(1). BECAUSE WE DID NOT REPEAT THE
LANGUAGE OF THE COMMENT IN THE JUNE 7, 1979 REVISED NPDES REGULATIONS OR
IN THE JUNE 14, 1979 PROPOSED CONSOLIDATED REGULATIONS, COMMENTERS ASKED
WHETHER EPA WAS CHANGING ITS POLICY. TO MAKE CLEAR THAT WE ARE NOT
CHANGING OUR POLICY, A SENTENCE HAS BEEN ADDED (SECTION 122.57(B)(2))
STATING THAT SUCH STORM SEWERS ARE NOT POINT SOURCES.
EPA HAS REWRITTEN AND REORGANIZED THE GENERAL PERMITS SECTION
(PROPOSED SECTION 122.82) FOR CLARITY AND TO MAKE MINOR CHANGES. FIRST,
THE "GENERAL PERMIT PROGRAM AREA (GPPA)" HAS BEEN ELIMINATED BECAUSE
THIS ENTITY, ALONG WITH ITS PROCEDURAL TRAPPINGS, SERVED NO PURPOSE
WHICH COULD NOT BE SERVED EQUALLY WELL SIMPLY BY THE AREA DESCRIBED IN
THE PERMIT. SECOND, THE PROPOSAL STATED THAT THE GENERAL PERMIT PROGRAM
AREA COULD BE "REVIEWED" IF NECESSARY TO ADDRESS WATER QUALITY PROBLEMS.
THE GENERAL PERMITY CAN BE MODIFIED FOR ANY OF THE CAUSES LISTED IN
SECTION 122.15 THAT APPLY TO ALL PERMITS. INFORMATION INDICATING
UNACCEPTABLE CUMULATIVE IMPACTS NOW APPEARS AS AN EXAMPLE OF INFORMATION
WHICH IS CAUSE FOR MODIFYING A PERMIT UNDER SECTION 122.15(A)(2) AND
APPLIES AS WELL TO GENERAL AND AREA PERMITS UNDER THE STATE 404 PROGRAMS
AND UIC PROGRAMS.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 049 OF 225
COSTLE DM ADMINISTRATOR
EPA
113548
REGULATIONS
THIRD, THE PROCEDURE FOR EPA HEADQUARTERS REVIEW OF EPA ISSUED DRAFT
GENERAL PERMITS, PROPOSED IN SECTION 124.7(A)(2) AND THE COMMENT
FOLLOWING SECTION 122.82(A), HAS BEEN SHORTENED TO ALLOW EPA 30 DAYS
RATHER THAN 90 TO REVIEW AND RAISE OBJECTIONS TO THE DRAFT PERMIT (FINAL
SECTION 124.58).
FOURTH, THE PROPOSAL (SECTION 122.83(E)(2)) STATED THAT THE DIRECTOR
COULD REVOKE A GENERAL PERMIT AS IT APPLIED TO AN INDIVIDUAL DISCHARGER
AND REQUIRE THAT DISCHARGER TO OBTAIN AN INDIVIDUAL PERMIT, BUT EPA
COULD DO THIS ONLY AFTER AN ON-SITE INSPECTION. THE REQUIREMENT FOR AN
ON-SITE INSPECTION HAS BEEN DELETED BECAUSE THE CAUSED FOR REQUIRING AN
INDIVIDUAL PERMIT (EXAMPLES ARE LISTED IN SECTION 122.59(B)(2)(I)) CAN
BE ADEQUATELY DTERMINED WITHOUT AN INSPECTION.
FIFTH, THE SOURCES OTHER THAN SEPARATE STORM SEWERS THAT MAY BE
COVERED BY A GENERAL PERMIT ARE NO LONGER LIMITED TO "MINOR" SOURCES, SO
LONG AS THE CATEGORY SPECIFIED IN THE PERMIT MEETS THE REQUIREMENTS OF
SECTION 122.59(A)(2).
FINALLY, SECTION 122.59(B)(2)(IV) CLARIFIES THAT THE GENERAL PERMIT
AUTOMATICALLY TERMINATES ON THE EFFECTIVE DATE OF AN INDIVIDUAL PERMIT.
SECTION 122.60(A)(1) STATES THE DUTY OF THE PERMITTEE TO COMPLY WITH
TOXIC EFFLUENT STANDARDS OR PROHIBITIONS REGARDLESS OF WHETHER THEY
APPEAR IN THE PERMIT. THIS REQUIREMENT FORMERLY APPEARED AS A COMMENT
TO PROPOSED SECTION 122.68(B).
SECTION 122.60(B) (PROPOSED SECTION 122.68(E)): THE PROPOSAL
REQUIRED A PERMITTEE TO CONTROL PRODUCTION AND ALL DISCHARGES UPON
REDUCTION, LOSS, OR FAILURE OF THE TREATMENT FACILITY, UNTIL THE
FACILITY IS RESTORED OR AN ALTERNATE METHOD OF TREATMENT PROVIDED. SOME
COMMENTERS ARGUED THAT THIS REQUIREMENT TO CONTROL BOTH PRODUCTION AND
DISCHARGES WAS BURDENSOME AND THAT SOME FLEXIBILITY SHOULD BE ALLOWED B
ASED ON THE DEGREE OF NONCOMPLIANCE. EPA AGREES IN PART AND HAS REVISED
SECTION 122.60(B) TO REQUIRE A PERMITTEE TO CONTROL EITHER PRODUCTION OR
ALL DISCHARGES RATHER THAN BOTH. HOWEVER, IF THE CIRCUMSTANCES WARRANT
THE PERMITTEE MAY STILL BE REQUIRED TO CONTROL BOTH PRODUCTION AND ALL
DISCHARGES.
PORTIONS OF PARAGRAPHS (D) THROUGH (H) OF PROPOSED SECTION 122.71
HAVE BEEN MOVED TO SECTION 122.60. THESE MONITORING REQUIREMENTS ARE
MANDATORY FOR ALL PERMITTEES AND AS SUCH PROPERLY APPEAR IN THE STANDARD
NPDES PERMIT CONDITIONS. THEY ARE DISCUSSED UNDER SECTION 122.62(I)
BELOW.
SECTION 122.60(F) CONTAINS THE 24-HOUR REPORTING REQUIREMENTS FOR
NPDES. THIS PARAGRAPH IS INTENDED TO COORDINATE WITH THE REPORTING
REQUIREMENTS UNDER SECTION 122.7(L). THE PROPOSAL REQUIRED 24-HOUR
REPORTING OF UNANTICIPATED BYPASSES IF THE PERMITTEE WISHED FOR THE
BYPASS NOT TO BE "PROHIBITED." THIS REQUIREMENT HAS BEEN COORDINATED
WITH THE 24-HOUR REPORTING DUTIES AND THEREFORE NOW APPLIES IN ALL
INSTANCES REGARDLESS OF WHETHER THE BYPASS WILL BE "PROHIBITED."
SIMILARLY, IN THE PROPOSAL UPSETS ONLY HAD TO BE REPORTED IF THE
PERMITTEE WISHED TO ESTABLISH AN AFFIRMATIVE DEFENSE TO AN ENFORCEMENT
ACTION FOR NONCOMPLIANCE. THIS 24-HOUR REPORTING DUTY HAS NOT ALSO BEEN
COORDINATED WITH THE OTHER 24-HOUR REPORTING DUTIES AND IS MANDATORY IN
ALL INSTANCES WHERE THE UPSET CAUSES ANY EFFLUENT LIMITATION IN THE
PERMIT TO BE VIOLATED. FINALLY, THE DIRECTOR MAY NOW SPECIFY IN THE
PERMIT ANY OTHER POLLUTANT WHICH HE OR SHE WISHES TO BE REPORTED WITHIN
24 HOURS IF A MAXIMUM DAILY DISCHARGE LIMITATION IS VIOLATED.
SECTION 122.60(G) CONTAINS PROVISIONS COVERING BYPASS. THE PARAGRAPH
HAS BEEN EXTENSIVELY REDRAFTED FOR CLARITY. IN GENERAL, THE PARAGRAPH
NOW CLARIFIES THAT BYPASS WHICH CAUSES VIOLATION OF EFFLUENT LIMITATIONS
IS PROHIBITED; THE PROPOSAL APPEARED TO PLACE THE PRESUMPTION IN FAVOR
OF APPROVAL OF A BYPASS. CONSEQUENTLY, TEN DAY ADVANCE NOTICE OF ANY
ANTICIPATED BYPASS WHICH MAY VIOLATE EFFLUENT LIMITATIONS IS NOW A
REQUIREMENT IN ALL CASES, AND NOT SIMPLY AN OPTIONAL MECHANISM FOR
OBTAINING "APPROVAL" OF AN OTHERWISE PROHIBITED BYPASS. SIMILARLY, EPA
HAS DELETED THE STATEMENT IN PROPOSED SECTION 122.68(C)(3) THAT "IF
THERE IS ANY DOUBT" AS TO THE NECESSITY FOR THE DISCHARGE, ENFORCEMENT
ACTION MAY BE TAKEN. FINALLY, THE REORGANIZED SECTION CLARIFIES THE
APPLICABILITY OF THE REQUIREMENT THAT BACKUP EQUIPMENT BE AVAILABLE TO
PREVENT BYPASS. IN GENERAL, BYPASS WILL NOT BE EXCUSED EXCEPT IN
EXTREME SITUATIONS, AND THE LACK OF ADEQUATE BACKUP EQUIPMENT FOR
DOWNTIME PERIODS WILL NOT BE A DEFENSE UNLESS THE PERMITTEE COULD NOT
HAVE ANTICIPATED THE NEED FOR SUCH EQUIPMENT AT THE TIME THE FACILITY
WAS CONSTRUCTED. SIMILARLY, ALTHOUGH IN GENERAL BYPASS WHICH DOES NOT
EXCEED EFFLUENT LIMITATIONS IS NOT PROHIBITED, THIS IS TRUE ONLY IF THE
BYPASS ALSO WAS NECESSARY FOR ESSENTIAL MAINTENANCE.
(1) SECTION 122.61(A) REQUIRES EXISTING INDUSTRIAL PERMITTEES TO
NOTIFY THE DIRECTOR WHEN SOME ACTIVITY HAS OCCURRED OR WILL OCCUR,
CAUSING THEM TO DISCHARGE TOXIC POLLUTANTS AT A LEVEL EXCEEDING FIVE
TIMES THE LEVEL REPORTED IN THE PERMIT APPLICATION. PERMITTEES MUST
ALSO NOTIFY THE DIRECTOR IF THEY BEGIN TO USE OR MANUFACTURE A TOXIC
POLLUTANT WHICH THEY DID NOT REPORT IN THE PERMIT APPLICATION. THIS
REQUIREMENT HAS BEEN CHANGED FROM THE PROPOSAL (SECTION 122.68(A) IN
PART III OF THE JUNE 14, 1979 FEDERAL REGISTER (44 FR 34393)) WHICH
ESTABLISHED PERMIT LIMITS AT FIVE TIMES THE REPORTED LEVEL OR DETECTION
LIMIT. IN RESPONSE TO A LARGE NUMBER OF COMMENTS ON THIS SECTION, EPA
HAS CHANGED ITS APPROACH TOWARDS CONTROLLING POLLUTANTS NOT LIMITED IN
PERMITS. A DETAILED DISCUSSION OF THE NEW SECTION AND THE COMMENTS
RECEIVED ON THE PROPOSAL APPEARS ELSEWHERE IN TODAY'S FEDERAL REGISTER
IN THE PREAMBLE TO THE PUBLIC NOTICE OF THE CONSOLIDATED APPLICATION
FORMS.
(2) SECTION 122.61(B) SPECIFIES CONDITIONS APPLICABLE TO ALL POTWS.
THEY WERE PROPOSED AS SECTION 122.69(D)(1), IN THE SECTION TITLED
"APPLICABLE LIMITATIONS, STANDARDS, PROHIBITIONS, AND CONDITIONS."
RATHER THAN LEAVING THEM AS REQUIREMENTS FOR PERMIT WRITERS TO SPECIFY
ON A CASE-BY-CASE BASIS, THEY WERE MOVED, WITHOUT SUBSTANTIVE CHANGE, TO
THIS SECTION BECAUSE THEY ARE APPLICABLE TO ALL POTSW.
(1) WE HAVE DIVIDED PROPOSED SECTION 122.69(A), WHICH LISTED REQUIRED
LIMITATIONS, INTO TWO PARAGRAPHS, SECTION 122.62(A) AND (B). SECTION
122.62(A) CONTAINS REQUIREMENTS FOR TECHNOLOGY-BASED LIMITATIONS, TO BE
IMPOSED EITHER ON THE BASIS OF GUIDELINES OR CASE-BY-CASE UNDER SECTION
125.3. IT ALSO SPECIFIES REQUIREMENTS CONCERNING NEW SOURCE PERFORMANCE
STANDARDS WHICH WERE PROPOSED AS SECTION 122.69(C).
(2) SECTION 122.62(C) MODIFIES THE PROPOSED SECTION 122.69(B) BY
DELETING THE FOUR DATES IN PROPOSED APPENDIX A (SEPTEMBER 30 AND
DECEMBER 31, 1980 AND MARCH 31 AND JUNE 30, 1981) AND REPLACING THEM BY
A SINGLE DATE IDENTIFIED IN THE TEXT OF SECTION 122.62(C), WHICH IS JUNE
30, 1981. ANY PERMIT ISSUED ON OR BEFORE JUNE 30, 1981 TO ANY
DISCHARGERS IN AN INDUSTRIAL CATEGORY LISTED IN APPENDIX A MUST CONTAIN
A REOPENER CLAUSE AS PROVIDED IN THIS SECTION. THIS WILL ENSURE
INCORPORATION OF THE REQUIREMENTS OF EFFLUENT GUIDELINES INTO PERMITS
ISSUED TO THESE DISCHARGERS. ANY PERMIT ISSUED AFTER JUNE 30, 1981 TO
THESE DISCHARGERS MUST MEET THE REQUIREMENTS OF SECTIONS 301(B)(2)(A),
(C), (D), (E), AND (F) OF THE CLEAN WATER ACT, WHETHER OR NOT APPLICABLE
EFFLUENT LIMITATION GUIDELINES HAVE BEEN PROMULGATED FOR THOSE
INDUSTRIES.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 050 OF 225
COSTLE DM ADMINISTRATOR
EPA
113549
REGULATIONS
THE EFFECT OF THE REVISION FROM THE PROPOSAL IS TO EXTEND THE TIME
DURING WHICH PERMIT WRITERS MAY WAIT FOR PROMULGATION OF GUIDELINES
BEFORE WRITING PERMITS REQUIRING BAT AND BCT. THIS CHANGE HAS BEEN MADE
FOR SEVERAL REASONS.
FIRST, MANY COMMENTERS EXPRESSED CONCERN THAT IN THE ABSENCE OF
GUIDELINES, PERMIT WRITERS WOULD BEGIN SETTING BAT LIMITS ON A
CASE-BY-CASE BASIS, RESULTING IN A LACK OF UNIFORMITY. AS A SOLUTION,
TWO COMMENTERS SUPPORT ALLOWING THE PERMITTING AUTHORITY TO EXTEND
EXPIRED PERMITS UNTIL APPLICABLE GUIDELINES ARE PROMULGATED.
THE DATES IN PROPOSED APPENDIX A WERE DERIVED BY ADDING 18 MONTHS TO
THE EFFLUENT GUIDELINE PROMULGATION DATES SET IN THE ORIGINAL NRDC
CONSENT DECREE. DUE TO THE ENORMITY OF THE TASK, IT BECAME EVIDENT THAT
EPA WOULD NOT BE ABLE TO MEET THAT AMBITIOUS SCHEDULE. THEREFORE, THE
PROMULGATION DATES WERE DELAYED SUBSTANTIALLY IN THE MODIFIED CONSENT
DECREE ON MARCH 9, 1979. FURTHERMORE, A MODERATE SLIPPAGE BEYOND THE
NEW DEADLINES IS LIKELY FOR SOME INDUSTRIES. AS A RESULT, SOME
GUIDELINES WILL BE PROMULGATED AFTER THE APPLICABLE DATES IN PROPOSED
APPENDIX A.
TO MAXIMIZE THE USAGE OF EFFLUENT GUIDELINES BY PERMIT WRITERS, THE
SEPTEMBER 30 AND DECEMBER 31, 1980 AND MARCH 31, 1981 DATES IN PROPOSED
APPENDIX A HAVE ALL BEEN EXTENDED TO JUNE 30, 1981 IN THE FINAL
REGULATIONS. DUE TO THE STATUTORY DEADLINE OF JULY 1, 1984, THE JUNE 30,
1981 DATE IS THE LATEST DATE BY WHICH IT WOULD BE REASONABLE TO WAIT FOR
PROMULGATION OF GUIDELINES. AFTER THAT DATE, PERMITS MUST REQUIRE
COMPLIANCE WITH SECTIONS 301(B)(2)(A), (C), (D), (E), AND (F) OF CWA,
WHETHER OR NOT GUIDELINES HAVE BEEN PROMULGATED.
IN CONJUNCTION WITH REVISING THE EXPIRATION DATES FOR SHORT-TERM BPT
PERMITS, EPA IS REVISING ONE OTHER ASPECT OF ITS SECOND ROUND PERMITS
POLICY. ON PAGE 25 OF "POLICIES AND GUIDANCE FOR ISSUING THE SECOND
ROUND OF NPDES PERMITS TO INDUSTRIAL DISCHARGERS" (JULY 1978), EPA
DIRECTED EPA REGIONAL OFFICES TO ISSUE ONLY SHORT-TERM PERMITS TO
PRIMARY INDUSTRIES UNLESS BAT GUIDELINES FOR TOXICS WERE PROMULGATED.
(STATES WERE ALLOWED TO ISSUE LONG-TERM PERMITS WITH REOPENER CLAUSES,
PROVIDED THAT THE PERMITS REQUIRED BAT AND BCT, BASED UPON BEST
ENGINEERING JUDGMENT). EPA IS NOW RESCINDING THIS DIRECTIVE.
AS OF TODAY, EPA PERMIT WRITERS MAY ISSUE LONG-TERM PERMITS TO
PRIMARY INDUSTRIES EVEN IF GUIDELINES HAVE NOT YET BEEN PROMULGATED,
PROVIDED THAT THE PERMITS REQUIRE BAT AND BCT AND CONTAIN REOPENER
CLAUSES. THE REASON FOR THIS CHANGE IS THAT JULY 1, 1984 DEADLINE FOR
COMPLIANCE WITH BAT AND BCT IS TWO YEARS CLOSER THAN IT WAS WHEN THE
SECOND ROUND PERMIT POLICY WAS WRITTEN. IN SOME SITUATIONS (FOR
EXAMPLE, WHEN THE APPLICABLE GUIDELINE IS NOT LIKELY TO BE PROMULGATED
BY JULY 1981) IT MAY BE APPROPRIATE TO ISSUE A LONG-TERM BAT PERMIT,
RATHER THAN TO ISSUE A SHORT-TERM PERMIT FOR A VERY SHORT PERIOD OF TIME
AND THEN ISSUE A LONG-TERM PERMIT SOON AFTERWARDS.
IN GENERAL, EPA CONTINUES TO ENCOURAGE EPA (AS WELL AS STATE) PERMIT
WRITERS TO ISSUE SHORT-TERM PERMITS (OR, WHERE NECESSARY, EXTEND THEM
ADMINISTRATIVELY UNDER SECTION 558(C) OF THE ADMINISTRATIVE PROCEDURES
ACT OR ANALOGOUS STATE LAW) TO PRIMARY INDUSTRY DISCHARGERS UNTIL BAT
GUIDELINES ARE PROMULGATED OR UNTIL JULY 1, 1981 (SEE SECTION
122.53(C)). HOWEVER, EPA PERMIT WRITERS ARE NOW BEING GIVEN THE SAME
FLEXIBILITY AS STATE PERMIT WRITERS HAVE HAD TO ISSUE LONG-TERM BAT AND
BCT PERMITS, BASED ON BEST ENGINEERING JUDGEMENT, IN APPROPRIATE
CIRCUMSTANCES.
THE PROPOSAL ALSO REQUIRED THE REOPENED PERMIT TO BE MODIFIED TO
INCLUDE "ANY OTHER REQUIREMENTS OF CWA THEN APPLICABLE," AND STATED THAT
THE REOPENED PERMIT COULD BE "MODIFIED OR, ALTERNATIVELY, REVOKED AND
REISSUED." THESE PROVISIONS ARE INCONSISTENT WITH THE PROVISIONS OF
SECTION 122.15 AND, BECAUSE THEY ARE NOT REQUIRED BY PARAGRAPH 10 OF THE
NRDC V. TRAIN SETTLEMENT AGREEMENT, THEY HAVE BEEN DELETED. THE
REOPENER CLAUSE NOW REQUIRES THAT "THE PERMIT SHALL BE MODIFIED OR
REVOKED AND REISSUED TO CONFORM TO THAT EFFLUENT STANDARD OR
LIMITATION."
(3) SECTION 122.62(D) (PROPOSED SECTION 122.69(F)) LISTS WATER
QUALITY STANDARDS AND STATE REQUIREMENTS IN ADDITION TO OR MORE
STRINGENT THAN TECHNOLOGY BASED STANDARDS OR LIMITATIONS. PROPOSED
SECTION 122.69(F)(10), WHICH INCLUDED TECHNOLOGY-BASED LIMITATIONS ON
POLLUTANTS NOT LIMITED IN GUIDELINES, HAS BEEN DELETED FROM THIS
PARAGRAPH, BECAUSE SUCH LIMITATIONS ARE NOW COVERED BY EXPANDED SECTION
122.62(A).
IN RESPONSE TO A COMMENT THAT PROPOSED SECTION 122.69(F)(3) WAS
OVERBROAD, EPA HAS AMENDED SECTION 122.62(D)(3) TO PROVIDE THAT AN NPDES
PERMIT WILL NOT INCLUDE MORE STRINGENT CONDITIONS OF A STATE
CERTIFICATION WHICH HAS BEEN STAYED BY A COURT OF COMPETENT JURISDICTION
OR BY AN APPROPRIATE STATE AGENCY. EPA WILL INCLUDE IN THE PERMIT,
HOWEVER, ANY MORE STRINGENT CONDITIONS NECESSARY TO MEET EPA'S
OBLIGATION UNDER SECTION 301(B)(1)(C) OF CWA.
(4) SECTION 122.62(E) REQUIRES PERMITS TO CONTAIN LIMITS CONTROLLING
ALL TOXIC POLLUTANTS WHICH EITHER ARE REPORTED AT LEVELS EXCEEDING BAT
OR ARE USED OR MANUFACTURED AT THE FACILITY. LIMITS MAY BE PLACED
DIRECTLY ON THESE TOXIC POLLUTANTS, OR INDIRECTLY ON OTHER POLLUTANTS IF
THOSE LIMITS WILL RESULT IN EQUIVALENT TREATMENT OF THE TOXIC
POLLUTANTS. THIS PROVISION IS INCLUDED IN THE FINAL REGULATIONS AS A
CHANGE IN THE AGENCY'S APPROACH TOWARD CONTROLLING POLLUTANTS NOT
LIMITED IN PERMITS. IN THE PREAMBLE TO THE REGULATIONS PROPOSED IN PART
III OF THE JUNE 14, 1979 FEDERAL REGISTER (44 FR 34393), EPA EXPRESSED
THE POLICY THAT PERMITS SHOULD CONTROL ALL SIGNIFICANT POLLUTANTS, AND
THAT THE PROPOSED APPLICATION-BASED LIMIT (PROPOSED SECTION 122.68(A))
WAS DESIGNED ONLY TO CONTROL UNEXPECTED POLLUTANTS. IN RESPONSE TO A
LARGE NUMBER OF COMMENTS, EPA NOW DISTINGUISHES BETWEEN POLLUTANTS THAT
SHOULD BE CONTROLLED BY THE PERMIT AND ALL OTHER POLLUTANTS, WHICH ARE
REGULATED ONLY BY THE REQUIREMENT THAT PERMITTEES NOTIFY THE DIRECTOR
WHEN THEIR DISCHARGE DOES OR WILL EXCEED FIVE TIMES THE REPORTED LEVEL
OR DETECTION LIMIT OF TOXIC POLLUTANTS (SECTION 122.61(A)). A MORE
DETAILED DISCUSSION OF THESE REGULATIONS APPEARS ELSEWHERE IN TODAY'S
FEDERAL REGISTER, IN THE PREAMBLE TO THE PUBLIC NOTICE OF THE
CONSOLIDATED APPLICATION FORMS.
(5) SECTION 122.62(G) IS A NEW PROVISION WHICH REQUIRES PERMIT
WRITERS TO SPECIFY WHICH POLLUTANTS WILL REQUIRE 24-HOUR NOTICE UNDER
SECTION 122.60(F)(3) TO THE DIRECTOR WHEN THEIR MAXIMUM DAILY DISCHARGE
LIMITATIONS ARE VIOLATED. THIS IS A CHANGE FROM THE PROPOSAL (SECTION
122.11(H)) WHICH REQUIRED 24-HOUR REPORTING FOR TOXIC POLLUTANTS AND
HAZARDOUS SUBSTANCES. BECAUSE IN SOME CASES TOXIC POLLUTANTS AND
HAZARDOUS SUBSTANCES WILL BE CONTROLLED BY LIMITS ON OTHER POLLUTANTS,
PERMIT WRITERS MUST BE ABLE TO REQUIRE 24-HOUR REPORTING FOR THESE OTHER
POLLUTANTS. IN ADDITION, THE DIRECTOR MAY SPECIFY ANY OTHER POLLUTANT
AS ONE WHICH MUST BE REPORTED IF A MAXIMUM DAILY DISCHARGE LIMITATION IS
EXCEEDED.
(6) SECTION 122.62(H) SPECIFIES THAT NPDES PERMIT DURATIONS MUST
COMPLY WITH SECTION 122.64. ALL PROVISIONS OF SUBPART D WHICH CONTAIN
REQUIREMENTS FOR HOW PERMITS MUST BE WRITTEN ARE CROSS-REFERENCED IN
SECTION 122.62.
(7) MONITORING. SECTION 122.62(I) (PROPOSED SECTION 122.71)
SPECIFIES THE MONITORING REQUIREMENTS THAT MUST BE PLACED IN NPDES
PERMITS. PROPOSED SECTION 122.71, "NPDES REQUIREMENTS FOR RECORDING AND
REPORTING OF MONITORING REPORTS" (SIC) HAS BEEN DELETED AND ITS
PROVISIONS PLACED IN THIS SECTION AND SECTIONS 122.7 AND 122.60 TO
CONFORM TO THE ORGANIZATION OF THE CONSOLIDATED REGULATIONS. THE
REQUIREMENT TO REPORT ALL MONITORING AND THE STATEMENTS OF THE POTENTIAL
LIABILITY FOR FALSIFYING MONITORING RESULTS UNDER THE CLEAN WATER ACT
HAVE BEEN MOVED TO FINAL SECTION 122.60 (CONDITIONS APPLICABLE TO ALL
NPDES PERMITS), WITH ONLY MINOR WORDING CHANGES.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 051 OF 225
COSTLE DM ADMINISTRATOR
EPA
113550
REGULATIONS
PROPOSED SECTION 122.71(D) IS DELETED FROM THE FINAL REGULATIONS.
THIS PROVISION ENCOURAGED PERMITTEES TO REQUEST THAT ADDITIONAL
MONITORING REQUIREMENTS BE PLACED IN THEIR PERMITS WHEN THEY FELT THAT
THE CONDITIONS IN THEIR DRAFT PERMITS WERE NOT SUFFICIENT TO YIELD
REPRESENTATIVE DATA. IT WAS DELETED BECAUSE SECTION (G) OF PROPOSED
SECTION 122.71 (RETAINED WITH MINOR WORDING CHANGES AS SECTION
122.60(F)(2) REQUIRED THAT PERMITTEES USE ALL MONITORING RESULTS IN
CALCULATING COMPLIANCE WITH PERMIT LIMITS, INCLUDING ANY RESULTS FROM
MONITORING MORE FREQUENTLY THAN REQUIRED BY THE PERMIT. THEREFORE,
PERMITTEES MAY UNDERTAKE ADDITIONAL MONITORING TO YIELD MORE
REPRESENTATIVE RESULTS WITHOUT REQUESTING PERMIT MODIFICATIONS. (THE
GENERAL REQUIREMENT THAT MONITORING BE REPRESENTATIVE NOW APPEARS IN
SECTION 122.7, APPLICABLE TO ALL PROGRAMS).
OTHER PROVISIONS OF PROPOSED SECTION 122.71 APPEAR IN FINAL SECTION
122.62(I). CERTAIN CHANGES HAVE BEEN MADE IN THIS PARAGRAPH TO
CORRESPOND TO THE AGENCY'S POLICY CONCERNING THE USE OF TEST METHODS
WHICH ARE APPROVED UNDER 40 CFR PART 136 AND WHICH ARE USED IN THE
DEVELOPMENT OF EFFLUENT STANDARDS AND LIMITATIONS. SPECIFICALLY, THE
FINAL REGULATIONS STATE THAT PERMITS MUST REQUIRE MONITORING USING TEST
METHODS APPROVED UNDER 40 CFR PART 136, FOR ALL POLLUTANTS HAVING
APPROVED TEST METHODS, AND THAT PERMITS MUST SPECIFY A TEST METHOD TO BE
USED IN MONITORING FOR POLLUTANTS NOT HAVING APPROVED TEST METHODS.
(APPROVED TEST METHODS INCLUDE ANY ALTERNATE TEST METHOD APPROVED BY THE
PROCEDURES IN 40 CFR PART 136; THEREFORE THE ADDITIONAL LANGUAGE IN
PROPOSED SECTION 122.71(B)(1) IS UNNECESSARY AND IS DELETED.) THE MAJOR
CHANGE FROM THE PROPOSAL IS THE DELETION OF THE REQUIREMENT THAT THE
DIRECTOR SPECIFY MONITORING TEST METHODS TO CORRESPOND TO THE TEST
METHODS USED IN DEVELOPING EFFLUENT LIMITATIONS, PROPOSED SECTION
122.71(B)(3) AND (4). THIS REQUIREMENT HAS BEEN DELETED BECAUSE IT IS
NOT ALWAYS APPROPRIATE TO CONSTAIN THE CHOICE OF MONITORING METHODS TO
THOSE USED IN DEVELOPING EFFLUENT GUIDELINES. ADDITIONAL PROVISIONS IN
THE PROPOSAL WHICH REQUIRED THE PERMIT TO SPECIFY ANY TEST METHODS AND
SAMPLING FREQUENCY REQUIRED BY STANDARDS OR GUIDELINES (PROPOSED
SECTIONS 122.71(B)(3), (4), AND 122.71(C)) HAVE BEEN DELETED BECAUSE THE
GENERAL REQUIREMENTS OF SECTION 122.62 THAT PERMITS CORRESPOND TO
STANDARDS AND GUIDELINES WILL ENSURE THAT THESE REQUIREMENTS (WHICH ARE
UNUSUAL IN STANDARDS AND GUIDELINES) WILL BE INCORPORATED INTO THE
PERMIT.
THE FINAL REGULATIONS RETAIN THE PROPOSED PROVISION ALLOWING THE
DIRECTOR TO SPECIFY MONITORING REQUIREMENTS FOR POLLUTANTS REPORTED IN
THE APPLICATION FORM BUT NOT LIMITED IN THE PERMIT. THE PROPOSAL
APPEARED IN PART III OF THE JUNE 14, 1979 FEDERAL REGISTER (44 FR 34393)
AS A PART OF THE PROPOSED CONSOLIDATED APPLICATION FORMS. FINAL SECTION
122.62(I)(1)(III) RETAINS THE PROVISION AS ONE EXAMPLE OF ADDITIONAL
MONITORING REQUIREMENTS THE DIRECTOR MAY SPECIFY IN THE PERMIT.
THE REQUIREMENT FOR SPECIFYING IN PERMITS A SCHEDULE FOR SUBMITTING
MONITORING RESULTS, ALLUDED TO IN PROPOSED SECTION 122.14(D) BUT
INADVERTENTLY DROPPED FROM PROPOSED SUBPART D, NOW APPEARS IN SECTION
122.62(I)(2) AND FOLLOWS THE REQUIREMENT THAT THE MINIMUM FREQUENCY BE
ONCE PER YEAR, WITH CERTAIN DISCHARGES REQUIRING MORE FREQUENT
REPORTING, AS IN THE FINAL NPDES REGULATIONS PUBLISHED ON JUNE 7, 1979
(SECTION 122.23(A), 44 FR 32910).
(8) SECTION 122.62(J) CONTAINS THE REQUIREMENT FOR PERMITS TO REQUIRE
A PRETREATMENT PROGRAM FROM POTWS. MINOR WORDING CHANGES HAVE BEEN MADE
FROM PROPOSED SECTION 122.69(D). OTHER PARTS OF PROPOSED SECTION
122.69(D) ARE INCORPORATED IN SECTION 122.61(B).
(9) BEST MANAGEMENT PRACTICES. THE COMMENT FOLLOWING THE REQUIREMENT
FOR PERMITS TO CONTAIN MANAGEMENT PRACTICES (PROPOSED SECTION 122.69(G),
NOW SECTION 122.62(K)) HAS BEEN DELETED AS UNNECESSARY; HOWEVER, THE
EXAMPLES OF MANAGEMENT PRACTICES ARE STILL APPLICABLE. IT SH OULD BE
NOTED THAT SEPARATE REQUIREMENTS FOR DEVELOPING A BEST MANAGEMENT
PRACTICES PROGRAM ARE CONTAINED IN PART 125, SUBPART K.
(10) "ANTI-BACKSLIDING." PROPOSED SECTION 122.68(I) (NOW SECTION
122.62(L)) REFLECTS EPA'S "ANTI-BACKSLIDING POLICY" AS INITIALLY
MODIFIED IN THE NPDES REGULATIONS. THIS POLICY PROHIBITS THE RENEWAL OR
REISSUANCE OF NPDES PERMITS CONTAINING INTERIM EFFLUENT LIMITATIONS LESS
STRINGENT THAN THOSE IMPOSED IN THE PREVIOUS PERMIT. THE THREE
EXCEPTIONS APPLIED ONLY WHEN BOTH (1) THE PREVIOUS PERMIT LIMITATIONS
WERE MADE ON A CASE-BY CASE BASIS UNDER SECTION 402(A)(1) OF CWA IN THE
ABSENCE OF PROMULGATED EFFLUENT GUIDELINES, AND WHEN (2) THE
SUBSEQUENTLY PROMULGATED EFFLUENT GUIDELINES WERE LESS STRINGENT.
NUMEROUS COMMENTS WERE RECEIVED ASSERTING THAT THE PROVISION WAS UNDULY
RESTRICTIVE. ONE COMMENTER NOTED THAT THE PROPOSED REGULATION COULD BE
CONSTRUED TO "LOCK" DISCHARGERS INTO MAINTAINING A FIXED TREATMENT
EFFICIENCY EVEN WHEN MAINTENANCE OF THAT EFFICIENCY LEVEL WAS NOT
NECESSARY TO COMPLY WITH APPLICABLE EFFLUENT GUIDELINES. EPA
RECONSIDERED THE "ANTI-BACKSLIDING" RULE AND HAS ADDED TWO NEW
EXCEPTIONS. THE FIRST, SECTION 122.62(L)(4), EXPLICITLY STATES WHAT WAS
IMPLICIT BEFORE; LESS STRINGENT LIMITATIONS MAY BE APPROPRIATE WHEN
THERE HAS BEEN A MATERIAL AND SUBSTANTIAL CHANGE IN THE CIRCUMSTANCES ON
WHICH THE PREVIOUS PERMIT WAS BASED WHICH WOULD CONSTITUTE GROUNDS FOR
PERMIT MODIFICATION OR REVOCATION AND REISSUANCE. THE SECOND NEW
EXCEPTION TO THE RULE, SECTION 122.62(L)(5), ALLOWS REDUCING PERMIT
LIMITATIONS TO CORRESPOND TO SUBSEQUENTLY-PROMULGATED GUIDELINE
LIMITATIONS WHEN INCREASED PRODUCTION SIGNIFICANTLY REDUCES TREATMENT
EFFICIENCY. THIS EXCEPTION WILL, IN EFFECT, ALLOW DISCHARGERS THAT HAVE
CONSTRUCTED TREATMENT FACILITIES WHICH ARE CAPABLE OF TREATING INCREASED
DISCHARGES RESULTING FROM A SUBSTANTIAL INCREASE IN PRODUCTION TO TAKE
ADVANTAGE OF THIS "BANKED" TREATMENT EFFICIENCY AS LONG AS DOING SO WILL
STILL ALLOW THEM TO MEET PERMIT LIMITS BASED ON SUBSEQUENTLY PROMULGATED
EFFLUENT GUIDELINES.
(11) PRIVATELY OWNED TREATMENT WORKS. DISCHARGES OF POLLUTANTS ARE
WITHIN THE JURISDICTION OF CWA WHETHER THEY ARE MADE DIRECTLY OR
INDIRECTLY INTO NAVIGABLE WATERS. SEE UNITED STATES V. GRANITE STATE
PACKING CO., 343 F. SUPP. 57 (D.N.H. 1972), AFF'D. 470 F.2D 303(1ST CIR.
1972). SOME DISCHARGERS, HOWEVER, ARRANGE FOR OTHER PRIVATE COMPANIES
TO TREAT THEIR WASTES BEFORE DISCHARGE INTO NAVIGABLE WATERS. ALTHOUGH
ALL THESE DISCHARGERS TECHNICALLY REQUIRE NPDES PERMITS UNDER CWA,
CONTROLS USUALLY ARE MOST APPROPRIATELY APPLIED AT THE POINT OF
TREATMENT. IN RECOGNITION OF THIS FACT AND IN RESPONSE TO COMMENTS
CRITICAL OF A REQUIREMENT THAT USERS OF PRIVATELY OWNED TREATMENT WORKS
OBTAIN NPDES PERMITS, EPA HAS MADE SEVERAL CHANGES THAT AFFECT THESE
USERS. WE HAVE ADDED A NEW SUBPARAGRAPH (M) TO AUTHORIZE THE PERMIT
WRITER TO INCLUDE IN THE PERMIT ISSUED TO A PRIVATELY OWNED TREATMENT
WORKS ANY CONDITIONS EXPRESSLY APPLICABLE TO ANY USER, AS A LIMITED
CO-PERMITTEE, THAT MAY REASONABLY BE NECESSARY TO ENSURE COMPLIANCE WITH
APPLICABLE REQUIREMENTS OF THE NPDES PROGRAM. FOR EXAMPLE, A PERMIT
ISSUED TO A TREATMENT WORKS MIGHT REQUIRE EACH USER TO NOTIFY THE
DIRECTOR IF IT BEGINS OR EXPECTS TO BEGIN TO USE OR MANUFACTURE A TOXIC
POLLUTANT NOT REPORTED IN THE PERMIT APPLICATION. THE PERMIT WRITER
ALTERNATIVELY MAY ISSUE SEPARATE PERMITS TO THE TREATMENT WORKS AND TO
THE USERS, OR MAY REQUIRE ANY USER TO SUBMIT ITS OWN PERMIT APPLICATION.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 052 OF 225
COSTLE DM ADMINISTRATOR
EPA
113551
REGULATIONS
THE DIRECTOR'S DECISION TO (1) IMPOSE NO CONDITIONS APPLICABLE TO THE
USERS, (2) IMPOSE CONDITIONS ON ONE OR MORE USERS, (3) ISSUE SEPARATE
PERMITS, OR (4) REQUIRE SEPARATE PERMITS, AND THE BASIS FOR THE
DECISION, MUST BE INCLUDED IN THE FACT SHEET PREPARED FOR THE DRAFT
PERMIT. THIS DISCRETIONARY AUTHORITY SHOULD PROVIDE THE DIRECTOR
SUFFICIENT FLEXIBILITY BOTH TO ENSURE COMPLIANCE WITH APPLICABLE
STANDARDS AND LIMITATIONS AND TO MINIMIZE ANY ADMINISTRATIVE BURDENS.
PROPOSED SECTION 122.64 HAS BEEN AMENDED BY ADDING A NEW PROVISION (NOW
SECTION 122.53 (D)(3)) THAT REQUIRES THE PRIVATELY OWNED TREATMENT WORKS
TO IDENTIFY IN ITS PERMIT APPLICATION ALL USERS OF THE TREATMENT WORKS.
SECTIONS 122.51(C)(2)(B)(II) (AMENDING PROPOSED SECTION 122.63(A)) AND
122.53(A) (PROPOSED SECTION 122.64(A)) EXCLUDE USERS FROM HAVING TO
APPLY FOR AND OBTAIN A PERMIT, EXCEPT AS THE DIRECTOR OTHERWISE MAY
REQUIRE UNDER SECTION 122.62. FINALLY, EPA HAS AMENDED PROPOSED SECTION
124.11(B)(1) TO ADD A NEW SUBPARAGRAPH (NOW SECTION 124.10(C)(2)(V)) TO
REQUIRE THAT PUBLIC NOTICE OF PERMITS BE SENT TO USERS IDENTIFIED IN THE
PERMIT APPLICATION SUBMITTED BY THE PRIVATELY OWNED TREATMENT WORKS.
THESE REQUIREMENTS APPLY PROSPECTIVELY, SO THAT ONLY AFTER THE EFFECTIVE
DATE OF THESE REGULATIONS WILL PRIVATELY OWNED TREATMENT WORKS HAVE TO
IDENTIFY THEIR USERS IN THEIR PERMIT APPLICATIONS AND PERMIT WRITERS BE
REQUIRED TO CHOOSE WHETHER TO IMPOSE PERMIT CONDITIONS OR APPLICATION
REQUIREMENTS ON SUCH USERS UNDER SECTION 122.63(M). (OF COURSE, PERMIT
WRITERS, IN APPROPRIATE CASES, MAY DETERMINE THAT IT IS UNNECESSARY TO
IMPOSE ANY PERMIT REQUIREMENTS ON THE USERS OF THE TREATMENT WORKS.)
EXISTING PERMITS HELD BY PRIVATELY OWNED TREATMENT WORKS, HOWEVER, MAY
CONTAIN CONDITIONS APPLICABLE TO THEIR USERS (WHETHER OR NOT THE US ERS
ARE IDENTIFIED IN THE PERMIT). PERMITTING AUTHORITIES WILL CONTINUE TO
ENFORCE THOSE CONDITIONS. SEE THE DECISION OF THE GENERAL COUNSEL NO.
43 (FRIENDSWOOD DEVELOPMENT COMPANY).
(1) SECTION 122.63(B) SETS REQUIREMENTS FOR CALCULATING PERMIT LIMITS
ON THE BASIS OF THE ACTUAL PRODUCTION OF THE FACILITY. THE REGULATION
HAS BEEN REWORDED WITH NO SUBSTANTIVE CHANGE FROM THE PROPOSED SECTION
122.70(A)(2), INCLUDING THE COMMENT. ADDITIONALLY EPA HAS NOW SPECIFIED
THAT THE TIME PERIOD FOR THE PRODUCTION MUST CORRESPOND TO THE TIME
PERIOD FOR THE PERMIT LIMIT. FOR EXAMPLE, PERMIT LIMITS USUALLY ARE
WRITTEN FOR A MAXIMUM DAILY DISCHARGE, AND AN AVERAGE MONTHLY DISCHARGE
WHICH IS USUALLY LOWER BY A FACTOR OF 1.5 OR 2. THEREFORE, A ONE-MONTH
PRODUCTION FIGURE SHOULD BE USED TO CALCULATE THE AVERAGE MONTHLY
DISCHARGE LIMITATION, OR A ONE-DAY PRODUCTION TO CALCULATE THE MAXIMUM
DAILY LIMITATION.
(2) PARAGRAPHS (C), (D), AND (E), HAVE BEEN REWORDED FROM THE
PROPOSAL WITH NO SUBSTANTIVE CHANGE. THE DEFINITIONS IN PROPOSED
SECTION 122.70(C) HAVE BEEN REWORDED SOMEWHAT AND MOVED TO THE
DEFINITIONS SECTION.
THE DEFINITIONS OF "AVERAGE MONTHLY DISCHARGE LIMITATION," "AVERAGE
WEEKLY DISCHARGE LIMITATION," AND "MAXIMUM DAILY DISCHARGE LIMITATION"
ALL USE THE TERM "DAILY DISCHARGE," WHICH IS ALSO DEFINED. THIS HAS
ALLOWED THE ELIMINATION OF DUPLICATE WORDING IN THE DEFINITIONS AND HAS
MADE THE TERMS MORE NEARLY PARALLEL.
(2) PARAGRAPH 122.63(F) (PROPOSED SECTION 122.70(C) AND (D)) NOW
PROVIDES PERMIT ISSUERS GREATER FLEXIBILITY IN USING CONCENTRATION
LIMITS. WHENEVER APPROPRIATE, PERMITS MAY INCLUDE A CONCENTRATION LIMIT
IN ADDITION TO A MASS LIMIT. LIMITATIONS EXPRESSED EXCLUSIVELY IN TERMS
OTHER THAN MASS MAY BE USED (1) WHEN APPLICABLE EFFLUENT GUIDELINE
LIMITATIONS ARE EXPRESSED OTHER THAN IN MASS; (2) WHEN ON A
CASE-BY-CASE BASIS THE MASS OF THE DISCHARGE CANNOT BE RELATED TO
PRODUCTION OR OTHER MEASURES OF OPERATION, AND DILUTION WILL NOT BE USED
AS A SUBSTITUTE FOR TREATMENT; OR (3) FOR PH OR OTHER POLLUTANTS WHICH
CANNOT APPROPRIATELY BE EXPRESSED AS MASS. FOR EXAMPLE, TOTAL SUSPENDED
SOLIDS DISCHARGES FROM CERTAIN MINING OPERATIONS MAY BE UNRELATED TO
MEASURES OF OPERATION. FINALLY, A PERMIT CAN ALWAYS CONTAIN A NON-MASS
LIMIT IN ADDITION TO A MASS LIMIT, AND THE PERMITTEE MUST COMPLY WITH
BOTH.
(3) SECTION 122.63(I) (PROPOSED SECTION 122.70(I)) CONCERNS
REQUIREMENTS FOR PLACING LIMITATIONS ON INTERNAL WASTE STREAM.
THE PROVISION NOW REQUIRES THE PERMIT WRITER TO INCLUDE IN THE
FACT SHEET UNDER SECTION 124.56 THE UNUSUAL CIRCUMSTANCES WHICH
REQUIRE THE IMPOSITION OF SUCH LIMITS. THE REQUIREMENT WILL ENSURE
THAT THE PERMITTEE AND OTHERINTERESTED PERSONS WILL BE ABLE TO
JUDGE THE REASONS WHY SUCH LIMITATIONS, WHICH ARE TO BE IMPOSED
ONLY IN EXCEPTIONAL CIRCUMSTANCES, ARE BEING USED IN EACH CASE.
THIS REQUIREMENTS SECTION HAS BEEN MODIFIED BY DELETING THE DATES IN
PROPOSED APPENDIX A AND REPLACING THEM IN THE BODY OF THE REGULATION
WITH THE SINGLE DATE OF JUNE 30, 1981. THE REASONS FOR THIS CHANGE ARE
DISCUSSED IN THE PREAMBLE TO SECTION 122.62(C).
(1) PARAGRAPH 122.66(D)(2) (PROPOSED SECTION 122.81(D)) GOVERNING
EXCLUSIONS FROM THE PROTECTION PERIOD HAS BEEN MODIFIED SLIGHTLY TO
CLARIFY THAT THE DIRECTOR MAY IMPOSE ANY PERMIT LIMIT IN CONFORMANCE
WITH SECTION 125.3 ON A TOXIC POLLUTANT OR HAZARDOUS SUBSTANCE NOT
CONTROLLED BY NEW SOURCE PERFORMANCE STANDARDS DURING THE PROTECTION
PERIOD, THUS INCLUDING LIMITS IMPOSED ON A CASE-BY-CASE BASIS AS WELL AS
THOSE REQUIRED BY EFFLUENT GUIDELINES.
(2) PROPOSED SECTION 122.81(D)(3) (NOW SECTION 122.66(D)(3)) REQUIRED
THAT PERMITTEES WITH A 10 YEAR "PROTECTION PERIOD" PURSUANT TO SECTION
122.81(D)(1) BE IN COMPLIANCE WITH ALL APPLICABLE REQUIREMENTS
IMMEDIATELY UPON THE EXPIRATION OF THE PROTECTION PERIOD. SOME
COMMENTERS WERE CONCERNED THAT WHEN NEW REQUIREMENTS WERE PROMULGATED AT
A SHORT TIME BEFORE THE EXPIRATION OF THE PROTECTION PERIOD THIS SECTION
COULD FORCE DISCHARGERS TO SHUT DOWN PENDING CONSTRUCTION OF TREATMENT
FACILITIES NECESSARY TO ACHIEVE IMMEDIATE COMPLIANCE. EPA RECOGNIZES
THIS CONCERN AND HAS REVISED FINAL SECTION 122.66 (D)(3) TO ALLOW
ADDITIONAL TIME FOR COMPLIANCE, BUT ONLY WHEN NECESSARY TO COMPLY WITH
REQUIREMENTS PROMULGATED LESS THAN 3 YEARS BEFORE THE EXPIRATION OF THE
PROTECTION PERIOD. THIS THREE-YEAR PERIOD PARALLELS THE REQUIREMENTS OF
SECTIONS 301(B) (2)(D) AND (F) OF CWA, WHICH ALLOW DISCHARGERS UP TO
THREE YEARS TO COMPLY WITH CERTAIN NEWLY PROMULGATED EFFLUENT
LIMITATIONS.
(3) AN ADDITIONAL CHANGE TO PROPOSED SECTION 122.81(D)(4) (NOW
SECTION 122.66(D)(4)) ALLOWS NEW DISCHARGERS WHICH COMMENCED DISCHARGE
BEFORE AUGUST 13, 1979 (THE EFFECTIVE DATE OF THE JUNE 7, 1979, NPDES
REGULATIONS) TO QUALIFY FOR SCHEDULES OF COMPLIANCE. (SEE FURTHER
DISCUSSION IN THE PREAMBLE TO SECTION 122.10(A).)
(4) SOME COMMENTERS SEEMED CONFUSED ABOUT THE DISTINCTION IN PROPOSED
SECTION 122.81(B) (NOW S ECTION 122.66(B)) BETWEEN CONSTRUCTION THAT
CREATES A NEW SOURCE AT THE SITE OF AN EXISTING SOURCE AND CONSTRUCTION
THAT ONLY MODIFIES THE EXISTING SOURCE. THEREFORE, WE HAVE CLARIFIED
PARAGRAPHS (B)(1) AND (B) (2) TO EMPHASIZE THAT CONSTRUCTION OF A NEW
SOURCE REQUIRES CONSTRUCTION OF A NEW BUILDING, STRUCTURE, FACILITY, OR
INSTALLATION. CONSTRUCTION THAT ALTERS, REPLACES, OR ADDS TO EXISTING
PROCESS OR PRODUCTION EQUIPMENT WITHOUT CREATING THESE SEPARATE,
PHYSICAL ENTITIES IS MERELY A MODIFICATION SUBJECT TO SECTION 122.15.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 053 OF 225
COSTLE DM ADMINISTRATOR
EPA
113552
REGULATIONS
FOR EXAMPLE, THE CONSTRUCTION OF AN ADDITIONAL DIGESTER WITHIN AN
EXISTING BUILDING AT A PULP MILL TO INCREASE PLANT CAPACITY WOULD BE A
MODIFICATION, WHEREAS THE CONSTRUCTION OF A SEPARATE BUILDING TO PRODUCE
INORGANIC CHEMICALS AT THE SITE OF AN EXISTING ORGANIC CHEMICALS PLANT
WOULD CREATE A NEW SOURCE.
(5) SECTION 122.66(C) (PROPOSED SECTION 122.81(C)) CONTAINS SEVERAL
MINOR CHANGES TO CONFORM TO THE COUNCIL ON ENVIRONMENTAL QUALITY'S
REGULATIONS FOR IMPLEMENTING THE PROCEDURAL PROVISIONS OF NEPA, 40 CFR
PARTS 1500-1508. THOSE REGULATIONS INCLUDE A REQUIREMENT THAT AGENCIES
PREPARE A FINDING OF NO SIGNIFICANT IMPACT, RATHER THAN ISSUING A
"NEGATIVE DECLARATION" WHERE AN ENVIRONMENTAL ASSESSMENT HAS BEEN
PREPARED WHICH INDICATES THAT AN ENVIRONMENTAL IMPACT STATEMENT (EIS) IS
NOT NEEDED. THUS THE FINAL SECTION SUBSTITUTES THE PHRASE "FINDING OF
NO SIGNIFICANT IMPACT" WHERE THE PROPOSAL REQUIRED A "NEGATIVE
DECLARATION."
SECTION 122.66(C)(4)(II) (PROPOSED SECTION 122.81(C)(4)(II)) BARRED
ON-SITE CONSTRUCTION FOR NEW SOURCES FOR WHICH AN EIS WAS NOT REQUIRED
UNTIL 15 DAYS AFTER ISSUANCE OF A NEGATIVE DECLARATION. THIS PARAGRAPH
HAS BEEN CHANGED TO STATE THAT ON-SITE CONSTRUCTION SHALL NOT COMMENCE
UNTIL 30 DAYS AFTER ISSUANCE OF A FINDING OF NO SIGNIFICANT IMPACT, TO
ALLOW FOR PUBLIC COMMENT IN LINE WITH CEQ'S NEPA REGULATIONS AT 40 CFR
SECTION 1501.4(E), AND EPA'S REGULATIONS IMPLEMENTING CEQ'S REGULATIONS
AT 40 CFR SECTION 6.400(D). CEQ'S REGULATIONS, 40 CFR SECTION
1501.4(E), PROVIDE IN CERTAIN CIRCUMSTANCES THAT NO ACTION SHALL BE
TAKEN UNTIL 30 DAYS FOLLOWING THE ISSUANCE OF A FINDING OF NO
SIGNIFICANT IMPACT TO ALLOW FOR PUBLIC REVIEW, EPA HAS DECIDED THAT THIS
RULE SHALL APPLY IN ALL CASES WHERE A FINDING OF NO SIGNIFICANT IMPACT
HAS BEEN ISSUED, IN LINE WITH THE PUBLIC REVIEW PROCEDURES FOR FINAL
ENVIRONMENTAL IMPACT STATEMENTS.
PROPOSED SECTION 122.72, WHICH CONTAINED NPDES NONCOMPLIANCE
REPORTING REQUIREMENTS, HAS BEEN MOVED TO SECTION 122.18. THE SUBSTANCE
OF THE PROPOSED SECTION HAS NOT CHANGED. ALL OF THE NONCOMPLIANCE
REPORTING REQUIREMENTS FOR EACH PROGRAM HAVE BEEN CONSOLIDATED IN
SECTION 122.18.
EPA HAS DELETED SECTION 122.83 OF THE PROPOSAL, "SPECIAL
CONSIDERATIONS UNDER FEDERAL LAW." HOWEVER, EPA-ISSUED NPDES PERMITS
MUST STILL REFLECT REQUIREMENTS OF OTHER APPLICABLE FEDERAL LAWS OR
REGULATIONS UNDER SECTION 301(B)(1) (C) OF CWA, AS INCORPORATED IN
SECTION 122.61(G)(5). IN ADDITION, ALL EPA-ISSUED PERMITS MUST REFLECT
REQUIREMENTS OF OTHER FEDERAL LAWS OR REGULATIONS, AS LISTED IN SECTION
122.12 AND AS FURTHER DISCUSSED IN THE ACCOMPANYING PREAMBLE DISCUSSION.
NEW APPENDICES HAVE BEEN ADDED (AND MODIFICATIONS HAVE BEEN MADE TO
APPENDIX A, DISCUSSED IN THE PREAMBLE TO SECTION 122.62(C)). APPENDIX B
LISTS CRITERIA FOR CONCENTRATED ANIMAL FEEDING OPERATIONS UNDER SECTION
122.54 AND APPENDIX C LISTS CRITERIA FOR CONCENTRATED AQUATIC ANIMAL
PRODUCTION FACILITIES UNDER SECTION 122.55. APPENDIX D LISTS SEVERAL
TABLES OF POLLUTANTS REQUIRED TO BE TESTED BY EXISTING INDUSTRIAL
DISCHARGERS UNDER SECTION 122.53(D), DISCUSSED IN THE PREAMBLE TO THE
CONSOLIDATED APPLICATION FORMS ELSEWHERE IN TODAY'S FEDERAL REGISTER.
PART 122 TO TODAY'S REGULATIONS
EPA HAS DEVELOPED THE TABLE VII FOR USE BY READERS WHO ARE FAMILIAR
WITH PART 122 OF THE FINAL NPDES REGULATIONS PUBLISHED ON JUNE 7, 1979
(44 FR 32854). THE TABLE SHOWS THE NEW NUMBERING OF EACH SECTION OF
PART 122 OF THE JUNE 7 REGULATIONS, AND SHOWS WHAT CHANGES, ADDITIONS,
AND DELETIONS HAVE BEEN MADE TO THE PARAGRAPHS AND SUBPARAGRAPHS OF EACH
SECTION. WE HOPE THAT THIS TABLE WILL PROVIDE A GUIDE TO A MORE
DETAILED EXAMINATION OF THE CHANGED REGULATIONS THEMSELVES. THE TABLE
IS ORGANIZED AS FOLLOWS:
THE FIRST COLUMN LISTS EACH PARAGRAPH OR SUBPARAGRAPH OF THE JUNE 7
REGULATIONS IN ORDER.
THE MIDDLE COLUMN, IN THE FIRST PHRASE, GIVES THE SUBJECT OF THE JUNE
7 PARAGRAPH OR SUBPARAGRAPH IN A FEW WORDS. THE SECOND PHRASE GIVES A
SUMMARY INDICATION OF CHANGES FROM THE JUNE 7 REGULATIONS.
THE LAST COLUMN LISTS THE PARAGRAPHS OR SUBPARAGRAPHS OF TODAY'S
REGULATIONS CORRESPONDING TO THE CONTENTS OF THE PARAGRAPH OR
SUBPARAGRAPH OF THE JUNE 7 REGULATIONS IN THE FIRST COLUMN.
EACH JUNE 7 SECTION HEADING (FOR EXAMPLE, PURPOSE AND SCOPE) IS
LISTED SEPARATELY AND ITALICIZED. AT THE END OF EACH JUNE 7 SECTION,
ANY ADDITIONAL PARAGRAPHS IN THE CORRESPONDING SECTION OF TODAY'S
REGULATIONS ARE LISTED. A BLANK IN THE FIRST COLUMN INDICATES THAT THE
PARAGRAPH IS COMPLETELY NEW. A BRACKETED REFERENCE TO A PARAGRAPH OF
THE JUNE 7 REGULATIONS IN THE FIRST COLUMN INDICATES THAT THE PARAGRAPH
HAS BEEN MOVED INTO THE CORRESPONDING SECTION OF TODAY'S REGULATIONS
FROM SOME OTHER SECTION OF THE JUNE 7 REGULATIONS. IN BOTH INSTANCES NO
EXPLANATION APPEARS IN THE SECOND COLUMN. THIS IS BECAUSE THE BRACKETED
JUNE 7 PARAGRAPH IS ALSO LISTED, AND EXPLAINED, IN THE PLACE WHERE IT
ORIGINALLY APPEARED, AND BECAUSE COMPLETELY NEW MATERIAL IS FULLY
ADDRESSED IN THIS PREAMBLE. THESE TWO DEVICES ENSURE THAT ALL
ADDITIONAL CHANGES AND REORGANIZATIONS PERTAINING TO A SECTION OF THE
JUNE 7 REGULATIONS ARE NOTED AT THE END OF THE SECTION.
BILLING CODE 6560-01-M.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 054 OF 225
COSTLE DM ADMINISTRATOR
EPA
113553
REGULATIONS
SECTION 122.1 PURPOSE AND SCOPE SECTION 122.1, SECTION 122.2, SECTION
122.51
SECTION 122.1(A) COVERAGE OF NPDES. REWORDED, NO SUBSTANTIVE CHANGE
SECTION 122.1(A)(III)
SECTION 122.1(B) COVERAGE OF 122, 123, 124. REWORDED, NO SUBSTANTIVE
CHANGE SECTION 122.1(B)
SECTION 122.1(B)(3) COVERAGE OF 125 BY STATES. MOVED TO PART 123
SECTION 123.7(D)
SECTION 122.1(C) PERMITS IMPLEMENT THE LAW. DELETED, DUPLICATES
OTHER PROVISIONS
SECTION 122.1(D) PERMITS ISSUED BY RA OR STATE DIRECTOR. DELETED,
DUPLICATES DEFINITIONS
SECTION 122.1(D) (COMMENT) RA AND STATE DIRECTOR INCLUDE DELEGEES.
DELETED, DUPLICATES DEFINITIONS
SECTION 122.2 LAW AUTHORIZING NPDES PERMITS. MINOR WORDING CHANGES
SECTION 122.51
SECTION 122.2(A) 301(A) OF CWA. MINOR WORDING CHANGES SECTION
122.51(B)(1)
SECTION 122.2(B) 402(A)(1) OF CWA. MINOR WORDING CHANGES SECTION
122.51(B)(2)
SECTION 122.2(C) 318(A) OF CWA. MINOR WORDING CHANGES SECTION
122.51(B)(3)
SECTION 122.2(D) 405 OF CWA. MINOR WORDING CHANGES SECTION
122.51(B)(4)
SECTION 122.2(E) 402(B), 318(B) & (C)8 405(C) OF CWA. MINOR WORDING
CHANGES SECTION 122.51(B)(5).
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 055 OF 225
COSTLE DM ADMINISTRATOR
EPA
113554
REGULATIONS
SECTION 122.2(F) 404 OF CWA. MOVED TO PART 123 SECTION 123.1
SECTION 122.2(G) 304(I) OF CWA. MINOR WORDING CHANGES SECTION
122.51(B)(6)
SECTION 122.2(H) 501(A) OF CWA. MINOR WORDING CHANGES SECTION
122.51(B)(7)
SECTION 122.2(I) 101(E) OF CWA. MINOR WORDING CHANGES SECTION
122.51(B)(8), SECTION 122.1(E)
SECTION 122.3 DEFINITIONS SECTION 122.3, NO LONGER WITH PARAGRAPH
NUMBERS
SECTION 122.3 (COMMENT) OTHER TERMS DEFINED IN CWA. MINOR WORDING
CHANGES; COMMENT INCORPORATED SECTION 122.3
SECTION 122.3(A) "ACT" DELETED, CWA USED INSTEAD CWA USED INSTEAD
SECTION 122.3(B) "ADMINISTRATOR" ADDED: "OR AN AUTHORIZED
REPRESENTATIVE" SECTION 122.3
SECTION 122.3(C) "APPLICATION" MINOR WORDING CHANGES SECTION 122.3
SECTION 122.3(D) "APPLICABLE STANDARDS AND LIMITATIONS" MINOR WORDING
CHANGES SECTION 122.3
SECTION 122.3(E) "APPROVED STATE PROGRAM" MOST OF DEFINITION DELETED
SECTION 122.3
SECTION 122.3(F) "BMPS" MINOR WORDING CHANGES; COMBINED WITH 404
SECTION 122.3
SECTION 122.3(H) "DIRECT DISCHARGE" MINOR WORDING CHANGES SECTION
122.3.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 056 OF 225
COSTLE DM ADMINISTRATOR
EPA
113555
REGULATIONS
SECTION 122.3(I) "DIRECTOR" COMMENT INCORPORATED INTO TEXT SECTION
122.3
SECTION 122.3(J) "DISCHARGE" MINOR WORDING CHANGES SECTION 122.3
SECTION 122.3(K) "DISCHARGE OF A POLLUTANT" MINOR WORDING CHANGES
SECTION 122.3
SECTION 122.3(L) "DMR" MINOR WORDING CHANGES SECTION 122.3
SECTION 122.3(M) "EFFLUENT LIMITATION" MINOR WORDING CHANGES SECTION
122.3
SECTION 122.3(N) "ENFORCEMENT DIVISION DIRECTOR" DELETED AS
DUPLICATIVE
SECTION 122.3(P) "INDIRECT DISCHARGER" MINOR WORDING CHANGES SECTION
122.3
SECTION 122.3(Q) "INTERSTATE AGENCY" MINOR WORDING CHANGES SECTION
122.3
SECTION 122.3(S) "NPDES" ADDED: "PRETREATMENT" SECTION 122.3
SECTION 122.3(T) "NAVIGABLE WATERS" TERM IS DELETED: MINOR WORDING
CHANGES FOR DEFINITIONS OF "WATERS OF THE UNITED STATES"
SECTION 122.3(U) "NEW DISCHARGER" INCLUDES INDIRECT DISCHARGER
SWITCHING TO DIRECT DISCHARGE, AND MOBILE POINT SOURCES WHICH MOVE
(E.G., DRILLING RIGS) SECTION 122.3
SECTION 122.3(V) "NEW SOURCE" MINOR WORDING CHANGES; COMMENT DELETED
SECTION 122.3.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 057 OF 225
COSTLE DM ADMINISTRATOR
EPA
113556
REGULATIONS
SECTION 122.3(W) "PERMIT" REWORDED; INCLUDES GENEFAL PERMIT;
EXCLUDES DRAFT AND PROPOSED PERMITS SECTION 122.3
SECTION 122.3(X) "PERSON" REWORDED, NO SUBSTANTIVE CHANGE SECTION
122.3
SECTION 122.3(Z) "POLLUTANT" MINOR WORDING CHANGES; COMMENT
INCORPORATED INTO NOTE SECTION 122.3
SECTION 122.3(AA) "PROCESS WASTEWATER" SAME SECTION 122.3
SECTION 122.3(BB) "POTW" REWORDED, NO SUBSTANTIVE CHANGE SECTION
122.3
SECTION 122.3(CC) "REGIONAL ADMINISTRATOR" MINOR WORDING CHANGES
SECTION 122.3
SECTION 122.3(DD) "SCHEDULE OF COMPLIANCE" MINOR WORDING CHANGES
SECTION 122.3
SECTION 122.3(HH) "STATE" MINOR WORDING CHANGES SECTION 122.3
SECTION 122.3(II) "STATE DIRECTOR" MINOR WORDING CHANGES SECTION
122.3
SECTION 122.3(JJ) "VARIANCE" ADDED: NOW INCLUDES MODIFICATIONS OF
TIME DEADLINES SECTION 122.3
SECTION 122.3(KK) "WATERS OF THE UNITED STATES" NOW DEFINED; WORDING
CHANGES, CLARIFYING TREATMENT PONDS EXCLUSIONS SECTION 122.3
(SECTION 122.16(C)(3)) "AVERAGE MONTHLY DISCHARGE LIMITATION" SECTION
122.3
(SECTION 122.16(C)(4)) "AVERAGE WEEKLY DISCHARGE LIMITATION" SECTION
122.3.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 058 OF 225
COSTLE DM ADMINISTRATOR
EPA
113557
REGULATIONS
(SECTION 122.16(C)(1)) "CONTINUOUS DISCHARGE" SECTION 122.3 "DAILY
DISCHARGE" SECTION 122.3 "DRAFT PERMIT" SECTION 122.3 "EFFLUENT
LIMITATIONS GUIDELINE" SECTION 122.3 "FACILITY OR ACTIVITY" SECTION
122.3 "GENERAL PERMIT" SECTION 122.3 "HAZARDOUS SUBSTANCE" SECTION 122.3
"MAJOR FACILITY" SECTION 122.3
(SECTION 122.16(C)(2)) "MAXIMUM DAILY DISCHARGE LIMITATION" SECTION
122.3 "OWNER OR OPERATOR" SECTION 122.3 "PRIMARY INDUSTRY" SECTION 122.3
"PRIVATELY OWNED TREATMENT WORKS" SECTION 122.3 "PROPOSED PERMIT"
SECTION 122.3 "RECOMMENCING DISCHARGER" SECTION 122.3 "SECONDARY
INDUSTRY" SECTION 122.3 "SITE" SECTION 122.3 "STATE/EPA AGREEMENT"
SECTION 122.3 "TOXIC POLLUTANT" SECTION 122.3
(SECTION 122.3(T)(6)) "WETLANDS" SECTION 122.3
SECTION 122.4 EXCLUSIONS SECTION 122.51(C)(2)
SECTION 122.4(A)(1) SEWAGE FROM VESSELS. ADDED: WHEN SECURED TO A
STORAGE OR SEAFOOD FACILITY SECTION 122.51(C)(2)(I)
SECTION 122.4(A)(2) 404. SAME SECTION 122.51(C)(2)(II).
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 059 OF 225
COSTLE DM ADMINISTRATOR
EPA
113558
REGULATIONS
SECTION 122.4(A)(3) INDIRECT DISCHARGERS. PART OF COMMENT
INCORPORATED SECTION 122.51(C)(2)(III)
SECTION 122.4(A)(4) SILVICULTURAL. MINOR WORDING CHANGES SECTION
122.51(C)(2)(V)
SECTION 122.4(B) STATE REGULATION NOT PRECLUDED. MINOR WORDING
CHANGES SECTION 122.1(F) INCLUSIONS - A SPECIFIC LIST. SECTION
122.51(C)(1) EXCLUSIONS - ORDERED BY ON-SCENE COORDINATOR. SECTION
122.51(C)(IV) EXCLUSIONS - IRRIGATION RETURN FLOWS. SECTION
122.51(C)(VI)
SECTION 122.5 SIGNATORIES SECTION 122.6
SECTION 122.5(A) PERMIT APPLICATIONS. SAME SECTION 122.6(A)
SECTION 122.5(B) REPORTS; AUTHORIZATION. ADDED: A POSITION CAN BE
AUTHORIZED SECTION 122.6(B)
SECTION 122.5(C) CHANGES TO AUTHORIZATION. REWORDED: SUBMITTED PRIOR
TO OR TOGETHER WITH REPORTS SECTION 122.6(C)
SECTION 122.5(D) CERTIFICATION. SAME; COMMENT DELETED SECTION
122.6(D)
SECTION 122.5(E) APPLICABLE TO STATES. STILL APPLICABLE TO STATES;
MAY ADOPT EQUIVALENT LANGUAGE, TAKEN CARE OF IN GENERAL PROVISIONS OF
PART 123
SECTION 122.10 APPLICATION FOR A PERMIT SECTION 122.4, SECTION 122.53
SECTION 122.10(A) WHO MUST APPLY. MINOR WORDING CHANGES SECTION
122.4(A), SECTION 122.53(A).
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 060 OF 225
COSTLE DM ADMINISTRATOR
EPA
113559
REGULATIONS
SECTION 122.10(B)(1) REAPPLICATION WHEN INCREASE DISCHARGE. DELETED
- NOW GROUND FOR MODIFICATION, DIRECTOR MAY REQUIRE NEW APPLICATION, SEE
SECTION 124.5
SECTION 122.10(B)(2) EXPIRING PERMITS - 180 DAY RULE. SAME FOR
POTWS; REWORDED: PHASING-IN FOR NEW APPLICATION FORMS SECTION
122.53(C)
SECTION 122.10(C) NEW DISCHARGER. MINOR WORDING CHANGES SECTION
122.53(B) WHO APPLIES? OPERATORS MUST APPLY SECTION 122.4(B)
(SECTION 122.11(A)) COMPLETENESS. PERMIT CAN'T BE ISSUED UNTIL
APPLICATION IS COMPLETE, TO DIRECTOR'S SATISFACTION SECTION 122.4(C)
INFORMATION REQUIREMENTS. LISTS INFORMATION REQUIRED IN FORM 1 SECTION
122.4(D) RECORDKEEPING. REQUIRES APPLICANTS TO KEEP DATA USED FOR
APPLICATIONS FOR THREE YEARS SECTION 122.4(E) INFORMATION REQUIREMENTS
FOR EXISTING INDUSTRIALS. LISTS INFORMATION REQUIRED IN FORM 2C SECTION
122.53(D) INFORMATION FROM ANIMAL FEEDLOTS & FISHFARMS. LISTS
INFORMATION IN FORM 2B SECTION 122.53(E) INFORMATION FROM POTWS
(RESERVED). WILL LIST INFORMATION IN FORM 2A SECTION 122.53(F)
INFORMATION FROM NEW INDUSTRIALS (RESERVED). WILL LIST INFORMATION IN
FORM 2D SECTION 122.53(G).
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 061 OF 225
COSTLE DM ADMINISTRATOR
EPA
113560
REGULATIONS
(SECTION 124.12) SPECIAL PROVISIONS FOR NEW SOURCES. MINOR WORDING
CHANGES SECTION 122.53(H)
(SECTION 124.51(A)(B)) VARIANCE REQUESTS BY NON-POTWS. REWORDED, NO
SUBSTANTIVE CHANGE SECTION 122.53(I)
(SECTION 124.51(A),(C)) VARIANCE REQUESTS BY POTWS. REWORDED, NO
SUBSTANTIVE CHANGE SECTION 122.53(J)
(SECTION 124.51(D)) EXPEDITED VARIANCE PROCEDURES. REWORDED, TIME
SPECIFIED AFTER NOTICE IS RECEIVED (INSTEAD OF "BEFORE DRAFT PERMIT IS
FORMULATED") ADDED: DRAFT OR FINAL PERMIT MAY CONTAIN ALTERNATIVE
LIMITATIONS; COMMENT DELETED SECTION 122.53(K)
SECTION 122.11 PERMIT ISSUANCE, EFFECT OF A PERMIT SECTION 122.13
SECTION 122.11(A) APPLICATION COMPLETENESS. REWORDED, NO SUBSTANTIVE
CHANGE SECTION 122.4(C)
SECTION 122.11(B) FINAL EPA ACTION. INCORPOFATED INTO 124 SECTION
124.19
SECTION 122.11(C) COMPLIANCE IS COMPLIANCE WITH CWA. MINOR WORDING
CHANGES SECTION 122.13(A)
SECTION 122.11(D)(1) ISSUANCE DOES NOT CONVEY RIGHTS OR PRIVILEGES.
SAME SECTION 122.13(B)
SECTION 122.11(D)(2) ISSUANCE DOES NOT AUTHORIZE INJURY. REWORDED,
NO SUBSTANTIVE CHANGE SECTION 122.13(C)
SECTION 122.11(D)(3) ISSUANCE DOES NOT PREEMPT STATE LAW. DELETED AS
REDUNDANT SECTION 122.13(C)
SECTION 122.12 DURATION, CONTINUATION, TRANSFER SECTION 122.5,
SECTION 122.9, SECTION 122.14, SECTION 122.64
SECTION 122.12(A) DURATION. REWORDED; "MODIFICATION ETC." DELETED AS
REDUNDANT SECTION 122.9(A).
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 062 OF 225
COSTLE DM ADMINISTRATOR
EPA
113561
REGULATIONS
SECTION 122.12(B)(1) CONTINUATION BY EPA. MINOR WORDING CHANGES
SECTION 122.5(A)
SECTION 122.12(B)(2) EFFECTIVENESS OF CONTINUED PERMITS. MINOR
WORDING CHANGES SECTION 122.5(B)
SECTION 122.12(B)(3) ENFORCEMENT OF CONTINUED PERMITS. REORGANIZED,
NO MAJOR CHANGES SECTION 122.5(C)
SECTION 122.12(B)(4) CONTINUATION BY STATES. MINOR WORDING CHANGES
SECTION 122.5(D)
SECTION 122.12(C) SHORT-TERM PERMITS. ALL DATES IN APPENDIX A ARE
JUNE 30, 1981; REARRANGEMENT AND WORDING CHANGES; PARTS OF COMMENTS
DELETED OR MOVED TO SECTION 122.62(C); NO BAT PERMITS WITHOUT TOXICS
DATA. SECTION 122.64
SECTION 122.12(D) TRANSFER. REWORDED: AUTOMATIC TRANSFERS UNDER
CONDITIONS SIMILAR TO SECTION 122.12(D); OTHERWISE, PERMIT MUST BE
MODIFIED TO TRANSFER SECTION 122.14, SECTION 122.7(1)(3)
SECTION 122.13 PROHIBITIONS SECTION 122.52
SECTION 122.13(A) NONCOMPLIANCE WITH CWA. MINOR WORDING CHANGES
SECTION 122.52(A)
SECTION 122.13(B) NO STATE CERTIFICATION. MINOR WORDING CHANGES
SECTION 122.52(B)
SECTION 122.13(C) REGIONAL ADMINISTRATOR OBJECTS. SAME SECTION
122.52(C)
SECTION 122.13(D) NONATTAINMENT OF WATER QUALITY OF STATES. MINOR
WORDING CHANGES SECTION 122.52(D)
SECTION 122.13(E) IMPAIRING NAVIGATION. SAME SECTION 122.52(E).
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 063 OF 225
COSTLE DM ADMINISTRATOR
EPA
113562
REGULATIONS
SECTION 122.13(F) RADIOLOGICAL WASTE. SAME SECTION 122.52(F)
SECTION 122.13(G) INCONSISTENT WITH 208 PLAN. MINOR WORDING CHANGES
SECTION 122.52(G)
SECTION 122.13(H) OCEAN DISCHARGE. MINOR WORDING CHANGES SECTION
122.52(H)
SECTION 122.13(I) VIOLATION OF WATER QUALITY. CHANGE TO PROHIBIT ANY
DISCHARGE VIOLATING WATER QUALITY STANDARDS; NEW SOURCE MUST
DEMONSTRATE SUFFICIENT ALLOCATION BEFORE CLOSE OF PUBLIC COMMENT PERIOD,
NEED NOT PROVE "ENTITLEMENT" SECTION 122.52(I) AND (J)
SECTION 122.14 CONDITIONS APPLICABLE TO ALL PERMITS INCORPORATION BY
REFERENCE REQUIRES SPECIFIC CITE. SECTION 122.7, SECTION 122.60,
SECTION 122.61
SECTION 122.14(A) (RESERVED) (APPLICATION-BASED LIMITS). EXISTING
DISCHARGERS MUST NOTIFY DIRECTOR IF THEY EXCEED FIVE-TIMES LEVELS
REPORTED IN THE APPLICATION SECTION 122.61(A)
SECTION 122.14(B) DUTY TO COMPLY. REWORDED, NO SUBSTANTIVE CHANGE
SECTION 122.7(A)
SECTION 122.14(C) PERMIT MAY BE MODIFIED. ADDED: FILING OF A
MODIFICATION REQUEST DOES NOT STAY CONDITIONS SECTION 122.7(A), SECTION
122.7(F)
SECTION 122.14(D) TOXIC STANDARDS OR PROHIBITIONS COMMENT INTO
STANDARD PERMIT TERMS, SECTION 122.60(A)(1); REQUIREMENT TO MODIFY INTO
MODIFICATION SECTION 122.15 AND INTO SECTION 122.62 SECTION
122.60(A)(1), SECTION 122.15(A)(5)(II), SECTION 122.62(B).
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 064 OF 225
COSTLE DM ADMINISTRATOR
EPA
113563
REGULATIONS
SECTION 122.14(E) REPORTING REQUIREMENTS. NO LONGER TIED TO CAUSES
FOR MODIFICATION; CAUSES SPELLED OUT INDIVIDUALLY; DIRECTOR'S RIGHT TO
REQUEST APPLICATION IN MODIFICATION (SECTION 124.5) SECTION 122.7(L)
SECTION 122.14(F) RIGHT OF ENTRY, COPYING, ETC. MINOR WORDING CHANGES
SECTION 122.7(I)
SECTION 122.14(G) OPERATE EFFICIENTLY. ADDED: REQUIRES BACKUP
EQUIPMENT ONLY TO COMPLY WITH PERMIT; MINOR WORDING CHANGES SECTION
122.7(E)
SECTION 122.14(H) NONCOMPLIANCE REPORTING. EXTENSIVELY REARRANGED,
SOME SUBSTANTIVE CHANGES. ADDED: PERMITS MUST SPECIFY 24-HR.
POLLUTANTS, OTHERS NOT REPORTED; PLANNED CHANGES AND ANTICIPATED
NON-COMPLIANCE IN ADVANCE SECTION 122.7(1)(2), (1)(6), (1)(7), SECTION
122.60(F)(3), SECTION 122.62(G)
SECTION 122.14(I) DUTY TO MINIMIZE IMPACT OF NONCOMPLIANCE MINOR
WORDING CHANGES SECTION 122.7(D)
SECTION 122.14(J) DUTY TO HALT ACTIVITIES. IN SECTION 122.7; NOT A
DEFENSE AGAINST ENFORCEMENT, SECTION 122.60; MINOR WORDING CHANGES
SECTION 1-2.7(C), SECTION 122.60(B)
SECTION 122.14(K) BYPASS. REARRANGED, NO SUBSTANTIVE CHANGE SECTION
122.60(G)
SECTION 122.14(L) UPSET. COMMENT PARTIALLY INCORPORATED, NO
SUBSTANTIVE CHANGE SECTION 122.60(H).
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 065 OF 225
COSTLE DM ADMINISTRATOR
EPA
113564
REGULATIONS
(SECTION 122.10(A)) DUTY TO REAPPLY. SECTION 122.7(B)
(SECTION 122.11(D)) PERMIT DOES NOT CONVEY PROPERTY RIGHTS. SECTION
122.7(G) DUTY TO PROVIDE INFORMATION TO THE DIRECTOR. SECTION 122.7(H)
(SECTION 122.20(B)(2)) MONITORING MUST BE REPRESENTATIVE. SECTION
122.7(J)(1)
(SECTION 122.21(B)) RETAINING RECORDS OF MONITORING. SECTION
122.7(J)(2)
(SECTION 122.5(A)) SIGNATORY REQUIREMENTS. SECTION 122.7(K)
(SECTION 122.31(E)(1)) REPORTING PLANNED CHANGES. SECTION
122.7(1)(1)
(SECTION 122.12(D)(1)) REPORTING TRANSFERS. SECTION 122.7(1)(3)
(SECTION 122.22(A)) REPORTING MONITORING RESULTS. SECTION
122.7(1)(4)
(SECTION 122.22(C)) REPORTING COMPLIANCE WITH CONSTRUCTION SCHEDULE.
SECTION 122.7(1)(5)
(SECTION 122.31(D)(2)) REPORTING OTHER INFORMATION PREVIOUSLY
REPORTED FALSELY. SECTION 122.7(1)(7) LISTING OF CIVIL & CRIMINAL
PENALTIES. SECTION 122.60(A)(2)
(SECTION 122.20(C)) MONITOR USING 40 CFR 136. SECTION 122.60(C)(1)
(SECTION 122.20(F)) PENALTIES FOR FALSIFYING MONITORING. SECTION
122.60(C)(2)
(SECTION 122.21(C), SECTION 122.22(D)) PENALTIES FOR FALSE
STATEMENTS. SECTION 122.60(D)
(SECTION 122.22(A), (B); 122.16(C)) MONITORING REPORTS. SECTION
122.60(E)
(SECTION 122.14(K)(2)(III), SECTION 122.14(1)(3)(III)) 24-HR.
REPORTING FOR UPSET & BYPASS. SECTION 122.60(F) APPLICATION-BASED
NOTIFICATION. SECTION 122.61(A)
(SECTION 122.15(D)(1)) NEW USERS REPORTING BY POTWS. SECTION
122.61(B).
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 066 OF 225
COSTLE DM ADMINISTRATOR
EPA
113565
REGULATIONS
SECTION 122.15 APPLICABLE LIMITATIONS AND STANDARDS SECTION 122.8,
SECTION 122.62
SECTION 122.15 "APPLICABLE REQUIREMENT." MINOR WORDING CHANGES
SECTION 122.8(B)
SECTION 122.15(A) EFFLUENT LIMITATIONS AND STANDARDS.
CLARIFICATIONS, SEPARATION OF TECHNOLOGY-BASED AND OTHER STANDARDS;
INCLUDING NEW SOURCES; NO SUBSTANTIVE CHANGES SECTION 122.62(A),(B)
SECTION 122.15(B) SHORT-TERM PERMITS; REOPENER CLAUSE. ALL DATES IN
APPENDIX A ARE JUNE 30, 1980, CONFORMING CHANGES HERE; REOPENER CLAUSE
NOW ONLY REOPENS PERMIT TO INCLUDE GUIDELINE, NOT ALL REQUIREMENTS OF
CWA SECTION 122.62(C)
SECTION 122.15(C) NEW SOURCE PERFORMANCE STANDARS. WORDING CHANGES,
INCORPORATED INTO TECHNOLOGY-0ASED STANDARDS SECTION, NO SUBSTANTIVE
CHANGES SECTION 122.62(A)
SECTION 122.15(D)(1) POTW NOTICE OF NEW USERS. MOVED TO STANDARD
PERMIT CONDITIONS, COMMENT INCORPORATED SECTION 122.61(B)
SECTION 122.15(D)(2) POTW PRETREATMENT PROGRAM. MINOR WORDING CHANGES
SECTION 122.62(J)
SECTION 122.15(E) POTW GRANT REQUIREMENTS. COMMENT DELETED SECTION
122.62(N)
SECTION 122.15(F)(1)-(9) ADDITIONAL WATER QUALITY STANDARDS. MINOR
WORDING CHANGES SECTION 122.62(D)(1)-(9)
SECTION 122.15(F)(10) TECHNOLOGY-BASED CASE-BY-CASE LIMITS.
INCORPORATED INTO SECTION 122.62(A) SECTION 122.62(A)
SECTION 122.15(F)(3) STATE CERTIFICATION. ADDED: IF CERTIFICATION
IS STAYED, CONDITIONS UNDER CWA SECTION 301(B)(1)(C) SECTION
122.62(D)(3).
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 067 OF 225
COSTLE DM ADMINISTRATOR
EPA
113566
REGULATIONS
SECTION 122.15(G) BEST MANAGEMENT PRACTICES. COMMENT DELETED SECTION
122.62(K)
SECTION 122.15(H) SEWAGE SLUDGE. SAME SECTION 122.62(O)
SECTION 122.15(I) REISSUED PERMITS WITH NO LESS STRINGENT LIMITS.
ADDED: CHANGES IN CIRCUMSTANCES ALLOWS LESS STRINGENT LIMITS;
INCREASED PRODUCTION LEADING TO REDUCED TREATMENT EFFICIENCY SECTION
122.62(1)
SECTION 122.15(J) VESSELS - COAST GUARD REGULATIONS. MINOR WORDING
CHANGES SECTION 122.62(P)
SECTION 122.15(K) CONDITIONS FOR NAVIGATION. SAME SECTION 122.62(Q)
INCORPORATION OF CONDITIONS BY REFERENCE. SECTION 122.8(C) LIMITS ON
TOXIC POLLUTANTS. SECTION 122.62(E) HIGHER NOTIFICATION LEVEL. SECTION
122.62(F) INDICATORS FOR 24-HR. REPORTING. SECTION 122.62(G)
(SECTION 122.12(A)) PERMIT DURATIONS. SECTION 122.62(H)
(SECTION 122.20(A)) MONITORING REQUIREMENTS. SECTION 122.62(I)
PRIVATELY OWNED TREATMENT WORKS. SECTION 122.62(M)
SECTION 122.16 CALCULATION OF EFFLUENT LIMITS SECTION 122.63
SECTION 122.16(A)(1) LIMITS FOR EACH OUTFALL. REWORDED, NO
SUBSTANTIVE CHANGE SECTION 122.63(A)
SECTION 122.16(A)(2) ACTUAL PRODUCTION LIMITS FOR NON-POTWS.
REWORDED, COMMENT INCORPORATED; TIME PERIOD FOR PRODUCTION SAME AS TIME
PERIOD FOR LIMITS SECTION 122.63(B)(2)
SECTION 122.16(A)(3) DESIGN FLOW LIMITS FOR POTWS. SAME SECTION
122.63(B)(1).
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 068 OF 225
COSTLE DM ADMINISTRATOR
EPA
113567
REGULATIONS
SECTION 122.16(B) TOTAL METALS. REWORDED, NO SUBSTANTIVE CHANGE
SECTION 122.63(C)
SECTION 122.16(C) MAXIMUM DAILY ETC. LIMITS. ADDED: "UNLESS
IMPRACTICABLE" COMMENT ADDED TO SECTION 122.60(E)(3) SECTION 122.63(D)
SECTION 122.16(C)(1)-(4) DEFINITIONS. PUT INTO DEFINITIONS SECTION,
SOME REWORDING, NO SUBSTANTIVE CHANGE SECTION 122.3
SECTION 122.16(D) MASS LIMITS. ADDED: (1) MASS-BASED LIMITS NOT
REQUIRED WHEN CASE-BY-CASE PRODUCTION CAN'T BE USED; (2)
CONCENTRATION-BASED LIMITS ALLOWED IN ADDITION TO MASS-BASED LIMITS, AND
PERMITTEE MUST COMPLY WITH BOTH SECTION 122.63(F)
SECTION 122.16(E) GROSS LIMITS. SAME SECTION 122.63(G)
SECTION 122.16(F) NET LIMITS. REWORDED, NO SUBSTANTIVE CHANGE, ALSO
ADDED TO CAUSES FOR MODIFICATION (SECTION122.15) SECTION 122.63(H);
SECTION 122.15(A)(5)(IV) AND (A)(5)(V)
SECTION 122.16(G) NONCONTINUOUS DISCHARGES. SAME SECTION 122.63(E)
SECTION 122.16(H) LIMITS ON INTERNAL WASTESTREAMS. ADDED: THE FACT
SHEET MUST INCLUDE AN EXPLANATION OF WHY THE LIMITS ARE NECESSARY;
COMMENT INCORPORATED SECTION 122.63(I)
(SECTION 122.41) DISPOSAL INTO WELLS, ETC. SECTION 122.63(J)
SECTION 122.17 SCHEDULES OF COMPLIANCE SECTION 122.10.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 069 OF 225
COSTLE DM ADMINISTRATOR
EPA
113568
REGULATIONS
SECTION 122.17(A) REQUIRE COMPLIANCE ASAP AND NO LATER THAN OWA
DEADLINE. REARRANGED, NO SUBSTANTIVE CHANGE SECTION 122.10(A)(1)
SECTION 122.17(B) INTERIM REQUIREMENTS. INTERIM DATES REQUIRED IF
COMPLIANCE IS MORE THAN 1 YEAR (INSTEAD OF 9 MONTHS) AWAY; EXAMPLES PUT
IN NOTE SECTION 122.10(A)(3), SECTION 122.10(A)(3) (NOTE)
SECTION 122.17(B)(1) TIME BETWEEN DATES. TIME BETWEEN INTERIM DATES
MAY BE UP TO 1 YEAR (INSTEAD OF 9 MONTHS) SECTION 122.10(A)(3)(I)
SECTION 122.17(B)(2) DIVIDE INTO STAGES; SUBMIT REPORTS. AGAIN,
TIME BETWEEN INTERIM DATES MAY BE 1 YEAR; NO OTHER CHANGE SECTION
122.10(A)(3)(II)
SECTION 122.17(C) ALTERNATIVE SCHEDULES OF COMPLIANCE. REWORDED, ANY
TERMINATION OF DISCHARGE SECTION 122.10(B)
SECTION 122.17(C)(1) TERMINATION AFTER PERMIT IS ISSUED. MINOR
WORDING CHANGES SECTION 122.10(B)(1)
SECTION 122.17(C)(1)(I) MODIFICATION TO INCLUDE TERMINATION.
REWORDED, NO SUBSTANTIVE CHANGE SECTION 122.10(B)(1)(I)
SECTION 122.17(C)(1)(II) TERMINATE BEFORE MISS ANY INTERIM DATE.
SAME SECTION 122.10(B)(1)(II)
SECTION 122.17(C)(2) DECISION BEFORE PERMIT IS ISSUED. REWORDED, NO
SUBSTANTIVE CHANGE SECTION 122.10(B)(2)
SECTION 122.17(C)(3) ALTERNATIVE SCHEDULES. ADDED: DIRECTOR MAY
MODIFY A PERMIT TO INCLUDE TWO SCHEDULES (AS WELL AS ISSUE A PERMIT)
SECTION 122.10(B)(3)
SECTION 122.17(C)(3)(I) DATE FOR FINAL DECISION. REWORDED, NO
SUBSTANTIVE CHANGE SECTION 122.10(B)(3)(I)
SECTION 122.17(C)(3)(II) SCHEDULE LEADING TO TERMINATION. REWORDED,
NO SUBSTANTIVE CHANGE SECTION 122.10(B)(3)(III).
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 070 OF 225
COSTLE DM ADMINISTRATOR
EPA
113569
REGULATIONS
SECTION 122.17(C)(3)(III) SCHEDULE LEADING TO COMPLIANCE. REWORDED,
COMPLIANCE MUST BE ACHIEVED AS SOON AS POSSIBLE SECTION 122.10(B)(3)(II)
SECTION 122.17(C)(3)(IV) FOLLOW APPROPRIATE SCHEDULE AFTER DECISION.
REWORDED, NO SUBSTANTIVE CHANGE SECTION 122.10(B)(3)(IV)
SECTION 122.17(C)(4) REQUIREMENT TO POST A BOND. DELETED
SECTION 122.17(C)(5) FIRM PUBLIC COMMITMENT. REWORDED, COMMENT
DELETED; NO SUBSTANTIVE CHANGE SECTION 122.10(B)(4)
SECTION 122.17(D) DIRECTOR MAY MODIFY COMPLIANCE SCHEDULE. REWORDED,
MOVED TO CAUSES FOR MODIFICATION, NO SUBSTANTIVE CHANGE SECTION
122.15(A)(4)
SECTION 122.17(E) POTW INNOVATIVE TECHNOLOGY GRANTS. REWORDED, MOVED
TO CAUSES FOR MODIFICATION, NO SUBSTANTIVE CHANGE SECTION
122.15(A)(5)(XI)
SECTION 122.17(F) NO COMPLIANCE SCHEDULE FOR NEW SOURCES, ETC.
REWORDED, MOVED TO FIRST PARAGRAPH, NO MAJOR CHANGE SECTION 122.10(A)(2)
SECTION 122.20 MONITORING SECTION 122.7(J), SECTION 122.7(1)(4),
SECTION 122.11, SECTION 122.60(C), SECTION 122.60(J)(1), SECTION
122.62(I)(1)
SECTION 122.20(A) PERMITS MUST CONTAIN MONITORING REQUIREMENTS.
REWORDED, NO SUBSTANTIVE CHANGE SECTION 122.62(I)(1)
SECTION 122.20(A)(1) MONITOR FOR EACH POLLUTANT LIMITED. REWORDED,
NO SUBSTANTIVE CHANGE SECTION 122.62(I)(1)(I)
SECTION 122.20(A)(2) MONITOR VOLUME. REWORDED, NO SUBSTANTIVE CHANGE
SECTION 122.62(I)(1)(II).
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 071 OF 225
COSTLE DM ADMINISTRATOR
EPA
113570
REGULATIONS
SECTION 122.20(A)(3) MONITOR OTHERWISE. REWORDED, ADDED EXAMPLE OF
REQUIRING MONITORING FOR POLLUTANTS REPORTED IN APPLICATION, INTERNAL
WASTESTREAMS, AND NET LIMITS SECTION 122.62(I)(1)(III)
SECTION 122.20(B)(1) PERMITS MUST SPECIFY MONITORING EQUIPMENT. MINOR
WORDING CHANGES SECTION 122.11(A)
SECTION 122.20(B)(2) MONITORING FREQUENCY MUST BE SUFFICIENTLY
REPRESENTATIVE. ADDED: MAY REQUIRE CONTINUOUS MONITORING; DELETED
SPECIFIC REQUIREMENT FOR MORE FREQUENT MONITORING OF VARIABLE EFFLUENTS
(REPRESENTATIVENESS REQUIREMENT REMAINS) OTHER REWORDING; IN STANDARD
PERMIT CONDITIONS, PERMITTEES MUST TAKE REPRESENTATIVE SAMPLES SECTION
122.11(B), SECTION 122.7(J)(1)
SECTION 122.20(B)(3) PERMITS MUST SPECIFY MONITORING METHODS.
DELETED AS REDUNDANT.
SECTION 122.20(C)(1) 40 CFR PART 136 LISTED OR ALTERNATE APPROVED
METHODS MUST BE USED. PERMITTEES MUST USE 40 CFR PART 136 METHODS OR A
METHOD SPECIFIED IN THE PERMIT SECTION 122.62(I)(IV), SECTION
122.60(C)(1)
SECTION 122.20(C)(2) DIRECTOR SPECIFIES A METHOD IN PERMIT WHERE NO
136. MINOR WORDING CHANGES SECTION 122.62(I)(1)(IV)
SECTION 122.20(C)(3) DIRECTOR MAY SPECIFY GUIDELINE METHOD. DELETED
SECTION 122.20(C)(4) DIRECTOR MUST SPECIFY GUIDELINE METHOD IF 40 CFR
136. DELETED
SECTION 122.20(D) SAMPLING FREQUENCY SHALL BE CONSISTENT WITH
GUIDELINE. DELETED.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 072 OF 225
COSTLE DM ADMINISTRATOR
EPA
113571
REGULATIONS
SECTION 122.20(E) PERMITTEE SHOULD REQUEST MORE FREQUENT MONITORING.
DELETED.
SECTION 122.20(F) PENALTIES FOR FALSIFYING MONITORING. SAME, MOVED
TO STANDARD PERMIT CONDITIONS SECTION 122.60(C)(2)
(SECTION 122.22(A)) REPORTING FREQUENCY. SECTION 122.11(C)
SECTION 122.21 RECORDING OF MONITORING RESULTS SECTION 122.7(J)(2)
(J)(3); SECTION 122.60(D)
SECTION 122.21(A) RECORDS OF MONITORING INFORMATION. DELETED "AND
MONITORING ACTIVITIES" SECTION 122.7(J)(3)
SECTION 122.21(A)(1) DATE, PLACE, AND TIME OF SAMPLING. SAME SECTION
122.7(J)(3)(I)
SECTION 122.21(A)(2) SAMPLERS. MINOR WORDING CHANGES. SECTION
122.7(J)(3)(II)
SECTION 122.21(A)(3) DATE OF ANALYSES. SAME SECTION 122.7(J)(3)(III)
SECTION 122.21(A)(4) ANALYZERS. MINOR WORDING CHANGES. SECTION
122.7(J)(3)(IV)
SECTION 122.21(A)(5) ANALYTICAL TECHNIQUES. SAME SECTION
122.7(J)(3)(V)
SECTION 122.21(A)(6) RESULTS. SAME SECTION 122.7(J)(3)(VI)
SECTION 122.21(B) RECORDS AND RESULTS KEPT FOR 3 YEARS. ADDED: ALL
REPORTS REQUIRED BY THE PERMIT AND APPLICATION DATA; AT LEAST 3 YEARS
FROM THE DATE OF THE SAMPLE, MEASUREMENT, OR REPORT; MINOR WORDING
CHANGES SECTION 122.7(J)(2).
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 073 OF 225
COSTLE DM ADMINISTRATOR
EPA
113572
REGULATIONS
SECTION 122.21(B)(1) THREE YEARS AUTOMATICALLY EXTENDED DURING
LITIGATION. NOW DIRECTOR MUST REQUEST EXTENSTION SECTION 122.7(J)(2)
SECTION 122.21(B)(2) THREE YEARS EXTENDED BY DIRECTOR'S REQUEST.
MINOR WORDING CHANGES SECTION 122.7(J)(2)
SECTION 122.21(C) PENALTIES FOR FALSE STATEMENTS. MINOR WORDING
CHANGES SECTION 122.60(D)
SECTION 122.22 REPORTING OF MONITORING RESULTS BY PERMITTEES SECTION
122.7(1)(5), SECTION 122.60(E), SECTION 122.60(1)(5), SECTION 122.60(D),
SECTION 122.62(I), SECTION 122.10(A)(4)
SECTION 122.22(A) PERMI-TEES MUST USE DMR. MINOR WORDING CHANGES
SECTION 122.60(E)(1)
SECTION 122.22(A) REPORTS AT LEAST ONCE PER YEAR. NOW IS DUTY OF
DIRECTOR TO SPECIFY IN PERMIT SECTION 122.62(I)(2), SECTION 122.11(C)
SECTION 122.22(A) PERMITTEE MUST REPORT OTHER DATA NOT REQUIRED BY
PERMIT. DELETED
SECTION 122.22(A)(COMMENT) EXAMPLES OF REPORTING FREQUENCY. MOST OF
COMMENT DELETED SECTION 122.62(I)(2)
SECTION 122.22(B) PERMITTEE MUST REPORT MORE FREQUENT MONITORING.
REWORDED, NO SUBSTANTIVE CHANGE SECTION 122.60(E)(2)
SECTION 122.22(C) PERMITTEE MUST REPORT COMPLIANCE WITH INTERIM
DATES. REWORDED, PUT IN BOTH STANDARD PERMIT CONDITIONS AND SCHEDULES
OF COMPLIANCE; NO SUBSTANTIVE CHANGE SECTION 122.7(1)(5), SECTION
122.10(A)(4)
SECTION 122.22(D) PENALTIES FOR FALSE STATEMENT. COMBINED WITH
SECTION 122.21(C) IN STANDARD PERMIT CONDITIONS SECTION 122.60(D).
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 074 OF 225
COSTLE DM ADMINISTRATOR
EPA
113573
REGULATIONS
SECTION 122.23 NONCOMPLIANCE REPORTING BY THE DIRECTOR SECTION 122.18
SECTION 122.23(A) STATE REPORTS TO REGION; REGIONAL REPORTS TO HQ.
CHANGES: REPORTS SUBMITTED TO RA (INSTEAD OF ENFORCEMENT DIVISION
DIRECTOR), REGIONAL REPORTS SUBMITTED BY RA TO EPA HEADQUARTERS (INSTEAD
OF BY ENFORCEMENT DIVISION DIRECTOR TO EPA OWE) SECTION 122.18, SECTION
122.18(E)
SECTION 122.23(B) REPORTS OF NONCOMPLIANCE BY MAJORS. REWORDED, NO
SUBSTANTIVE CHANGE SECTION 122.18(A)
SECTION 122.23(B)(1) REPORT FAILURE TO MEET CONSTRUCTION DATE.
REWORDED, NO SUBSTANTIVE CHANGE SECTION 122.18(A)(2)
SECTION 122.23(B)(2) FAILURE TO SUBMIT SCHEDULE REPORTS. COMBINED
WITH FAILURE TO SUBMIT MONITORING REPORTS; MINOR WORDING CHANGES
SECTION 122.18(A)(2)(III)
SECTION 122.23(B)(3)(I) NONCOMPLIANCE WITH APPLICABLE LIMITATIONS.
KEYED ON VIOLATION OF PERMIT (INSTEAD OF APPLICABLE STANDARDS); UNLESS
RETURNED TO COMPLIANCE BEFORE 45 DAYS AFTER REPORTING NONCOMPLIANCE WAS
DUE (INSTEAD OF "OR DATE WHEN DMR WAS DUE") SECTION 122.18(A)(2)(V)(A)
SECTION 122.23(B)(3)(II) PATTERN OF NONCOMPLIANCE. REWORDED, NO
SUBSTANTIVE CHANGE SECTION 122.18(A)(2)(V)(B)
SECTION 122.23(B)(3)(III) SIGNIFICANT NONCOMPLIANCE. REWORDED, NO
SUBSTANTIVE CHANGE SECTION 122.18(A)(2)(V)(C)
SECTION 122.23(B)(4) FAILURE TO REPORT DMR. COMBINED WITH FAILURE TO
SUBMIT PROGRESS REPORTS, MINOR WORDING CANGES SECTION 122.18(A)(2)(III).
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 075 OF 225
COSTLE DM ADMINISTRATOR
EPA
113574
REGULATIONS
SECTION 122.23(B)(4) FAILURE TO REPORT NONCOMPLIANCE. DELETED AS
DUPLICATIVE
SECTION 122.23(B)(5) DEFICIENT REPORTS. REWORDED, NO SUBSTANTIVE
CHANGE SECTION 122.18(A)(2)(IV)
SECTION 122.23(B)(6( MODIFICATION OF COMPLIANCE SCHEDULE. REWORDED,
REPORTING REQUIRED WHEN SCHEDULE IS MODIFIED SECTION 122.18(A)(2)(II)
SECTION 122.23(B)(6) (COMMENT) ALL NONCOMPLIANCE REPORTED UNTIL
RESOLVED. REWORDED. NO SUBSTANTIVE CHANGE SECTION 122.18(A)(2)
SECTION 122.23(C)(1) INFORMATION REQUIRED IN REPORT. REARRANGED, NO
SUBSTANTIVE CHANGE SECTION 122.18(A)(1)(IV)
SECTION 122.23(C)(1)(I) NAME, LOCATION, PERMIT NUMBER. SAME SECTION
122.18(A)(1)(IV)(A)
SECTION 122.23(C)(1)(II) DATE AND DESCRIPTION OF NONCOMPLIANCE.
COMBINED WITH REQUIREMENT FOR A SINGLE ENTRY PER PERMITTEE (SECTION
122.23(C)(3)); MINOR WORDING CHANGES SECTION 122.18(A)(1)(IV)(B)
SECTION 122.23(C)(1)(III) DATE AND DESCRIPTION OF DIRECTOR'S ACTIONS.
SAME SECTION 122.18(A)(1)(IV)(C)
SECTION 122.23(C)(1)(IV) STATUS OF NONCOMPLIANCE. STATUS AS OF DATE
OF REVIEW (INSTEAD OF DATE OF ACTION) SECTION 122.18(A)(1)(IV)(D)
SECTION 122.23(C)(1)(V) MITIGATING FACTORS. SAME SECTION
122.18(A)(1)(IV)(E)
SECTION 122.23(C)(2) SEPARATE LISTS FOR POTW, NON-POTW, FEDERAL.
MINOR WORDING CHANGES SECTION 122.18(A)(1)(I)
SECTION 122.23(C)(3) SINGLE ENTRY PER PERMITTEE. COMBINED WITH DATE
AND DESCRIPTION REQUIREMENT; MINOR WORDING CHANGES SECTION
122.18(A)(1)(IV)(B).
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 076 OF 225
COSTLE DM ADMINISTRATOR
EPA
113575
REGULATIONS
SECTION 122.23(C)(4) ALPHABETIZED. MINOR WORDING CHANGES SECTION
122.18(A)(1)(III)
SECTION 122.23(D) STATISTICAL INFORMATION. MINOR WORDING CHANGES
SECTION 122.18(A)(2)(VI)
SECTION 122.23(E) ANNUAL REPORTS FOR NON-MAJORS. REPORTS MUST
INCLUDE NUMBER REVIWED, NUMBER NONCOMPLYING, NUMBER OF ENFORCEMENT
ACTIONS, AND NUMBER OF MODIFICATIONS EXTENDING DEADLINES SECTION
122.18(C)(1)
SECTION 122.23(E) SEPARATE LIST OF NON-MAJORS BEHIND IN CONSTRUCTION.
SAME SECTION 122.18(C)
SECTION 122.23(F)(1) REPORTING SCHEDULE FOR QUARTERLY REPORTS. SAME
SECTION 122.18(C)
SECTION 122.23(F)(2) REPORTING SCHEDULE FOR ANNUAL REPORTS. REPORTS
SUBMITTED AT END OF CALENDAR YEAR (DECEMBER 31) (INSTEAD OF FISCAL YEAR)
SECTION 122.18(E)(2)
SECTION 122.23(G) REPORTS AVAILABLE TO THE PUBLIC. NO LONGER
SPECIFIED SEPARATELY SECTION 122.18(E)(2) FOOTNOTE
SECTION 122.23(G) (COMMENT) DESIGNATION OF MAJORS. MAJORS ARE DEFINED
IN SECTION 122.3 SECTION 122.3 SEPARATE LIST FOR FACILITIES WITH TWO OR
MORE PERMITS. SECTION 122.18(A)(1)(II)
SECTION 122.30 GENERAL MODIFICATION, REVOCATION, TERMINATION. NO
LONGER A SEPARATE SECTION
SECTION 122.31 MODIFICATION, REVOCATION AND REISSANCE, AND
TERMINATION SECTION 122.15, SECTION 122.16, SECTION 122.17
SECTION 122.31(A) ANY PERMIT MAY BE MODIFIED, ETC. FOR CAUSE. SAME
SECTION 122.13(A), SECTION 122.15.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 077 OF 225
COSTLE DM ADMINISTRATOR
EPA
113576
REGULATIONS
SECTION 122.31(B) MODIFICATION CAN'T GIVE LONGER THAN 5-YEAR TERM.
PUT INTO DURATION SECTION SECTION 122.9(D)
SECTION 122.31(C) DIRECTOR MAY INITIATE. DIRECTOR MAY REVOKE AND
REISSUE ONLY FOR SEPARATE CAUSE OR AT PERMITTEE'S REQUEST; MAY INITIATE
MODIFICATION IF CAUSE EXISTS SECTION 122.15
SECTION 122.31(C) ANY INTERESTED PERSON MAY REQUEST. INCORPORATED
INTO 124 SECTION 124.5(A)
SECTION 122.31(D) CAUSES FOR MODIFICATION, REVOCATION AND REISSUANCE,
AND TERMINATION. SEPARATED CAUSES FOR REVOCATION AND REISSUANCE OR
TERMINATION, FROM MODIFICATION; MODIFICATIONS ONLY OF CONDITION GIVING
CAUSE SECTION 122.15(A)
SECTION 122.31(D)(1) NONCOMPLIANCE WITH PERMIT. NOW CAUSE FOR
TERMINATION, "NONCOMPLIANCE" (INSTEAD OF "VIOLATION") SECTION
122.16(A)(1)
SECTION 122.31(D)(2) MISREPRESENTATION OF FACTS. NOW CAUSE FOR
TERMINATION REWORDED: FAILURE TO DISCLOSE FULLY "AT ANY TIME" SECTION
122.16(A)(2)
SECTION 122.31(D)(3) REDUCTION OR ELIMINATION OF DISCHARGE. NOW
CAUSE FOR TERMINATION; LAST TWO EXAMPLES DELETED SECTION 122.16(A)(4)
SECTION 122.31(D)(4) THREAT TO HUMAN HEALTH. NOW CAUSE FOR
TERMINATION; REWORDED: DETERMINATION (INSTEAD OF "INFORMATION");
"HUMAN HEALTH OR THE ENVIRONMENT" (INSTEAD OF "HUMAN HEALTH OR
WELFARE"); ADDED: "WHICH CAN ONLY BE REGULATED TO ACCEPTABLE LEVELS BY
PERMIT MODIFICATION OR TERMINATION." SECTION 122.16(A)(3).
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 078 OF 225
COSTLE DM ADMINISTRATOR
EPA
113577
REGULATIONS
SECTION 122.31(D)(5) TRANSFER. CAUSE FOR A REVOCATION AND REISSUANCE;
CONTINUES TO BE CAUSE FOR MODIFICATION BUT NOT REVOCATION AND
REISSUANCE AFTER AUTOMATIC TRANSFER. SECTION 122.15(B)(2)
SECTION 122.31(E) CAUSE FOR MODIFICATION OR REVOCATION AND
REISSUANCE. MODIFICATION ONLY, UNLESS PERMITTEE REQUESTS; MODIFICATION
ONLY OPENS UP CONDITION GIVING CAUSE SECTION 122.15(A)
SECTION 122.31(E)(1) SUBSTANTIAL ALTERATIONS. REWORDED: "WHICH
JUSTIFY THE APPLICATION OF PERMIT CONDITIONS THAT ARE DIFFERENT OR
ABSENT IN THE EXISTING PERMIT" (INSTEAD OF "WHICH WERE NOT COVERED IN
THE EFFECTIVE PERMIT"); EXAMPLES DELETED; COMMENT PARTIALLY
INCORPORATED, WITH LESS DISCUSSION OF NEW SOURCES SECTION 122.15(A)(1)
SECTION 122.31(E)(2) NEW INFORMATION. REWORDED, CLARIFIED,
"INFORMATION" NOT "FACTORS"; OTHER CHANGES SECTION 122.15(A)(2)
SECTION 122.31(E)(3) NEW REGULATIONS. COMBINED WITH JUDICAL REMAND
(SECTION 122.31(E)(4) SECTION 122.15(A)(3)
SECTION 122.31(E)(3)(I) PERMIT CONDITION BASED ON REVISED REGULATION.
MINOR WORDING CHANGES SECTION 122.15(A)(3)(I)(A)
SECTION 122.31(E)(3)(II) EPA ACTION HAS REVISED. MINOR WORDING
CHANGES SECTION 122.15(A)(3)(I)(B)
SECTION 122.31(E)(3)(III) REQUEST FILED WITHIN 90 DAYS. REWORDED, NO
SUBSTANTIVE CHANGE SECTION 122.15(A)(3)(I)(C)
SECTION 122.31(E)(4) JUDICIAL REMAND OR STAY. REMANDED BY A COURT OF
COMPETENT JURISDICTION; "REMAND OR STAY" (INSTEAD OF "REMAND') SECTION
122.15(A)(3)(II).
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 079 OF 225
COSTLE DM ADMINISTRATOR
EPA
113578
REGULATIONS
SECTION 122.31(E)(5) AS AUTHORIZED BY CWA. REQUIREMENTS LISTED
SEPARATELY IN SECTION 122.15(A)(5)(II) SECTION 122.15(A)(5)(II)
SECTION 122.31(E)(6( CROSS REFERENCES. SEPARATED SECTION 122.15(A)
SECTION 122.31(E)(6) REQUIRED BY TOXIC STANDARD OR PROHIBITION.
WRITTEN OUT SECTION 122.15(A)(5)(II)
SECTION 122.31(E)(6( REQUIRED BY TOXICS REOPENER CLAUSE. WRITTEN OUT
SECTION 122.15(A)(5)(III)
SECTION 122.31(E)(6) TO MODIFY COMPLIANCE SCHEDULE. WRITTEN OUT,
TRANSFERRED FROM SECTION 122.17(D) SECTION 122.15(A)(4)
SECTION 122.31(E)(6) INNOVATIVE WASTE TREATMENT GRANT TO POTW.
WRITTEN OUT, TRANSFERRED FROM SECTION 122.17(E) SECTION 122.15(A)(5)(XI)
SECTION 122.31(E)(7) FAILURE TO NOTIFY AFFECTED STATE. SAME SECTION
122.15(A)(5)(VII)
SECTION 122.31(F) MINOR MODIFICATION. ADDED: CONSENT OF PERMITTEE
REQUIRED; DELETED: UNLESS WOULD MAKE PERMIT LESS STRINGENT SECTION
122.17
SECTION 122.31(F)(1) MINOR MODIFICATION, CORRECTION OF TYPE. SAME
SECTION 122.17(A)
SECTION 122.31(F)(2) MORE FREQUENT MONITORING. MINOR WORDING CHANGES
SECTION 122.17(B)
SECTION 122.31(F)(3) CHANGE IN COMPLIANCE SCHEDULE. MINOR WORDING
CHANGES SECTION 122.17(C)
SECTION 122.31(F)(4) TRANSFER. REWORDED, REQUIREMENT FOR AGREEMENT
INCLUDED (INSTEAD OF REFERENCED), NO SUBSTANTIVE CHANGE SECTION
122.17(D).
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 080 OF 225
COSTLE DM ADMINISTRATOR
EPA
113579
REGULATIONS
SECTION 122.31(F)(5) CHANGE IN CONSTRUCTION FOR NEW SOURCE. SAME
SECTION 122.17(G)(1)
SECTION 122.31(F)(6) DELETE OUTFALL. MINOR WORDING CHANGES SECTION
122.17(G)(2)
(SECTION 122.10(B)(1) SECTION 122.14(E)) DIRECTOR MAY REQUEST AN
APPLICATION. SECTION 122.15 MODIFICATION WHEN STATE CERTIFICATION
CHANGES. SECTION 122.15(A)(3)(III)
(SECTION 122.16(F)(1)) TO INCORPORATE NET LIMITS. SECTION
122.15(A)(5)(IV)
(SECTION 122.16(F)(1)(II)) TO REMOVE NET LIMITS. SECTION
122.15(A)(5)(V) WHEN "REOPENER" FOR PRETREATMENT IS TRIGGERED. SECTION
122.15(A)(5)(III) TO REOPEN PRETREATMENT COMPLIANCE SCHEDULE. SECTION
122.15(A)(5)(VI) WHEN DISCHARGE EXCEEDS SECTION 125.3 LEVELS. SECTION
122.15(A)(5)(VIII) WHEN PERMITTEE BEGINS TO USE OR MANUFACTURE TOXICS.
SECTION 122.15(A)(5)(IX) TO ESTABLISH A HIGHER "NOTIFICATION LEVEL."
SECTION 122.15(A)(5)(X)
(SECTION 122.31(D)) ANY CAUSE FOR TERMINATION IS CAUSE FOR
REVOCATION. SECTION 122.15(B)(1)
(SECTION 122.30 DIRECTOR FOLLOWS PART 124 PROCEDURES FOR TERMINATION.
SECTION 122.16(B)
SECTION 122.40 GENERAL -- SPECIAL NPDES PROGRAMS NO LONGER A SEPARATE
SECTION
SECTION 122.41 DISPOSAL INTO WELLS, ETC. SECTION 122.65
SECTION 122.41(A) WHEN TO MAKE ADJUSTMENTS. SAME SECTION 122.65(A).
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 081 OF 225
COSTLE DM ADMINISTRATOR
EPA
113580
REGULATIONS
SECTION 122.41(A)(1) IF NO WASTE DISCHARGED. SAME SECTION
122.65(A)(1)
SECTION 122.41(A)(2) CALCULATION FOR PARTIAL DISCHARGERS. MINOR
WORDING CHANGES, COMMENT INCORPORATED SECTION 122.65(A)(2)
SECTION 122.41(B) NOT APPLICABLE FOR CONCENTRATION GUIDELINES. MINOR
WORDING CHANGES SECTION 122.65(B)
SECTION 122.41(C) MAY BE MORE STRINGENT. INCREASED NUMBER OF
CROSS-REFERENCES SECTION 122.65(C)
SECTION 122.42 CONCENTRATED ANIMAL FEEDING OPERATIONS SECTION 122.54
SECTION 122.42(A) PERMIT REQUIREMENTS. SAME SECTION 122.54(A)
SECTION 122.42(B)(1) DEFINITION OF ANIMAL FEEDING OPERATION. SAME
SECTION 122.54(B)(1)
SECTION 122.42(B)(2) DEFINITION OF CONCENTRATED. MOVED TO APPENDIX
B, NO SUBSTANTIVE CHANGE SECTION 122.54(B)(2), APPENDIX B
SECTION 122.42(C) CASE-BY-CASE DESIGNATION. MINOR WORDING CHANGES
SECTION 122.54(C)
SECTION 122.43 CONCENTRATED AQUATIC ANIMAL PRODUCTION FACILITIES
SECTION 122.55
SECTION 122.43(A) PERMIT REQUIRED. SAME SECTION 122.55(A)
SECTION 122.43(B) DEFINITION OF CONCENTRATED. MOVED TO APPENDIX C,
NO SUBSTANTIVE CHANGES SECTION 122.55(B), APPENDIX C
SECTION 122.43(C) CASE-BY-CASE DESIGNATION. MINOR WORDING CHANGES
SECTION 122.55(C)
SECTION 122.44 AQUACULTURE PROJECTS SECTION 122.56.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 082 OF 225
COSTLE DM ADMINISTRATOR
EPA
113581
REGULATIONS
SECTION 122.44(A) PERMIT REQUIREMENTS. SAME SECTION 122.56(A)
SECTION 122.44(B) DEFINITIONS. SAME SECTION 122.56(B)
SECTION 122.45 SEPARATE STORM SEWERS SECTION 122.57
SECTION 122.45(A) PERMIT REQUIRED. ADDED: COVERAGE OF PERMIT FROM
COMMENT AT END OF SECTION 122.45, MINOR WORDING CHANGES SECTION
122.57(A)
SECTION 122.45(B) DEFINITIONS. REWORDED, CLARIFIED SECTION 122.57(B)
SECTION 122.45(C) CASE-BY-CASE DESIGNATION. MINOR WORDING CHANGES
SECTION 122.57(C)
SECTION 122.46 SILVICULTURAL ACTIVITIES SECTION 122.58
SECTION 122.46(A) PERMIT REQUIRED. SAME SECTION 122.58(A)
SECTION 122.46(B) DEFINITIONS. MINOR WORDING CHANGES SECTION
122.58(B)
SECTION 122.47 NEW SOURCES AND NEW DISCHARGERS SECTION 122.66
SECTION 122.47(A) DEFINITIONS. SAME, "SITE" MOVED TO SECTION 122.3
SECTION 122.66(A)
SECTION 122.47(B)(1)(I) CONSTRUCTION ON A NEW SITE. SAME SECTION
122.66(B)(1)(I)
SECTION 122.47(B)(1)(II) CONSTRUCTION ON AN EXISTING SITE. REWORDED,
TOTALLY REPLACES OR CAUSES CHANGE IN DISCHARGE; COMMENT DELETED SECTION
122.66(B)(1)(II)
SECTION 122.47(B)(2) MODIFICATION OF EXISTING SOURCE. REWORDED -
CONSTRUCTION MUST CREATE NEW BUILDING SECTION 122.66(B)(2).
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 083 OF 225
COSTLE DM ADMINISTRATOR
EPA
113582
REGULATIONS
SECTION 122.47(B)(3) COMMENCEMENT OF CONSTRUCTION. SAME SECTION
122.66(B)(3)
SECTION 122.47(C)(1) REQUIREMENT FOR AN EIS. SAME SECTION
122.66(C)(1)
SECTION 122.47(C)(2) EIS INCLUDES RECOMMENDATION. MINOR WORDING
CHANGES SECTION 122.66(C)(2)
SECTION 122.47(C)(3) RA REVIEW. ADDED: "ISSUE, CONDITION, OR DENY";
"OR A FINDING OF NO SIGNIFICANT IMPACT" SECTION 122.66(C)(3)
SECTION 122.47(C)(4)(I) NO ON-SITE CONSTRUCTION WITH EIS. ADDED: RA
MUST FIND NO IRREVERSIBLE IMPACT; PROVISIONS OF AGREEMENT SHALL BE PUT
INTO PERMIT SECTION 122.66(C)(4)(I)
SECTION 122.47(C)(4)(II) NO ON-SITE CONSTRUCTION WITH NO EIS. MUST
WAIT 30 DAYS (INSTEAD OF 15), RA MUST MAKE "NO SIGNIFICANT IMPACT"
DETERMINATION OF CONSTRUCTION (INSTEAD OF THE PROBABLE NEED FOR EIS)
SECTION 122.66(C)(4)(II)
SECTION 122.47(C)(5) NOTIFICATION OF ON-SITE CONSTRUCTION. SAME
SECTION 122.66(C)(5)
SECTION 122.47(D) EFFECT OF NSPS. ADDED: PARAGRAPH CLARIFYING THAT
EXISTING SOURCES ARE NOT COVERED FROM COMMENT AT END OF SECTION 122.47
SECTION 122.66(D)
SECTION 122.47(D)(1) PROTECTION PERIOD. SAME SECTION 122.66(D)(1)
SECTION 122.47(D)(2) DOESN'T APPLY TO TOXICS. ADDED: DOES NOT APPLY
TO ANY SECTION 125.3 LIMIT ON TOXICS OR HAZARDOUS SUBSTANCES SECTION
122.66(D)(2).
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 084 OF 225
COSTLE DM ADMINISTRATOR
EPA
113583
REGULATIONS
SECTION 122.47(D)(3) COMPLIANCE SCHEDULES. ADDED: COMPLIANCE
SCHEDULES ALLOWED TO MEET CONDITIONS PROMULGATED WITHIN 3 YEARS OF
PERMIT EXPIRATION SECTION 122.66(D)(3)
SECTION 122.47(D)(4) START-UP CONTROL EQUIPMENT. SAME SECTION
122.66(D)(4)
SECTION 122.47(D)(5) EFFECTIVENESS OF NSPS. SAME SECTION 122.66(D)(5)
SECTION 122.48 GENERAL PERMITS SECTION 122.59
SECTION 122.48(A)(2) DEFINITION OF "GPPA." NO LONGER SEPARATELY
DEFINED, NO SUBSTANTIVE CHANGE SECTION 122.59(A)(1)
SECTION 122.48(A)(2) (COMMENT) OBJECTION BY EPA. MOVED TO 123 AND 124
SECTION 124.57, SECTION 123.76
SECTION 122.48(A)(3) DEFINITION OF GENERAL PERMIT. DEFINITION
SHORTENED, REGULATORY REQUIREMENTS ELSEWHERE; NO SUBSTANTIVE CHANGE
SECTION 122.3, SECTION 124.57, SECTION 123.76, SECTION 122.59(A)(1)
SECTION 122.48(B)(1) COVERAGE OF SEPARATE STORM SEWERS. SAME SECTION
122.59(A)(2)(I)
SECTION 122.48(B)(2) COVERAGE OF OTHER SOURCES. MINOR WORDING CHANGES
SECTION 122.59(A)(2)(II)
SECTION 122.48(C) COVERS A CATEOGRY WITHIN AREA. NO LONGER A
SEPARATE REQUIREMENT SECTION 122.59(A)(1)
SECTION 122.48(C)(1) AREA. MINOR WORDING CHANGES SECTION 122.59(A)(1)
SECTION 122.48(C)(2) DESIGNATION SUBJECT TO REVIEW. DELETED. SECTION
122.59(A)(1)
SECTION 122.48(C)(3) PROCEDURES FOLLOW PART 124. REWORDED, NO
SUBSTANTIVE CHANGE SECTION 122.59(B)(1).
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 085 OF 225
COSTLE DM ADMINISTRATOR
EPA
113584
REGULATIONS
SECTION 122.48(C)(3) (COMMENT) PROVIDING NOTICE. ADDED TO SECTION
124.57 SECTION 124.57
SECTION 122.48(D)(1) EXCLUDED SOURCES. REWORDED, NO SUBSTANTIVE
CHANGE SECTION 122.59(A)(1), SECTION 122.59(B)(2)
SECTION 122.48(D)(2)I) PERMIT APPLIES TO ALL NOT EXCLUDED. REWORDED,
NO SUBSTANTIVE CHANGE SECTION 122.59(A)(1)
SECTION 122.48(D)(2)(II) REQUEST FOR COVERAGE. MINOR WORDING CHANGES
SECTION 122.59(B)(2)(V)
SECTION 122.48(E)(1) REQUIREMENT FOR INDIVIDUAL PERMIT. REWORDED, NO
SUBSTANTIVE CHANGE SECTION 122.59(B)(2)(I)
SECTION 122.48(E)(2) EPA REVOCATION. REWORDED, REQUIREMENT FOR ONSITE
INSPECTION DELETED; ALLOWANCE FOR ADDITIONAL TIME ADDED SECTION
122.59(B)(2)(II)
SECTION 122.48(E)(3) REQUEST FOR INDIVIDUAL PERMIT. REWORDED, NO
SUBSTANTIVE CHANGE SECTION 122.59(B)(2)(III)
SECTION 122.48(E)(4) EFFECT OF INDIVIDUAL PERMIT. INCORPORATED WITH
SECTION 122.48(E)(5) SECTION 122.59(B)(2)(IV)
SECTION 122.48(E)(5) PROCESSING UNDER PART 124. INCORPORATED WITH
SECTION 122.48(E)(4) SECTION 122.59(B)(2)(IV)
SECTION 122.49 SPECIAL CONSIDERATIONS UNDER FEDERAL LAW. SECTION
122.12
SECTION 122.49(A) EO 11990 (WETLANDS). RESERVED IN TODAY'S
REGULATIONS SECTION 122.12(F) (RESERVED)
SECTION 122.49(B) EO 11988 (FLOODPLAINS). RESERVED IN TODAY'S
REGULATIONS SECTION 122.12(F) (RESERVED)
SECTION 122.49(C) WILD AND SCENIC RIVERS. NARRATIVE ADDED SECTION
122.12(A)
SECTION 122.49(D) NATIONAL HISTORIC PRESERVATION. NARRATIVE ADDED
SECTION 122.12(B)
SECTION 122.49(E) LAND AND WATER CONSERVATION ACT. DELETED.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 086 OF 225
COSTLE DM ADMINISTRATOR
EPA
113585
REGULATIONS
SECTION 122.49(F) ENDANGERED SPECIES. NARRATIVE ADDED SECTION
122.12(C)
SECTION 122.49(G) COASTAL ZONE MANAGEMENT. NARRATIVE ADDED, COMMENT
DELETED SECTION 122.12(D)
SECTION 122.49(H) RCRA. DELETED
SECTION 122.49(I) SDWA. DELETED
SECTION 122.49(J) OCEAN DUMPING. DELETED
SECTION 122.49(K) SURFACE MINING. DELETED
SECTION 122.49(1) FISH AND WILDLIFE COORDINATION. MINOR WORD CHANGES
SECTION 122.12(E)
(SECTION 122.47(C)) NEPA. COVERAGE SPECIFIED SECTION 122.12(F)
SECTION 122.60 DELEGATION OF AUTHORITY DELETED CONFIDENTIALITY OF
INFORMATION SECTION 122.19
BILLING CODE 6560-01-C.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 087 OF 225
COSTLE DM ADMINISTRATOR
EPA
113586
REGULATIONS
/4/ IN THIS REGARD, THERE WAS ONE PLACE IN THE PROPOSED REGULATIONS
WHERE THE AGENCY SUGGESTED THAT PAST PERFORMANCE IN ENFORCEMENT WOULD BE
A FACTOR IN EVALUATING STATE RCRA PROGRAMS (SEE THE COMMENT AFTER
PROPOSED SECTION 123.34(D)). THIS PROVISION WAS STRONGLY CRITICIZED BY
A LARGE NUMBER OF COMMENTERS WHO FELT THAT PAST PERFORMANCE IS NOT A
RELEVANT FACTOR IN EVALUATING A STATE PROGRAM. WHILE EPA BELIEVES THAT
PAST PERFORMANCE CAN BE CONSIDERED, IT AGREES WITH THE COMMENTERS THAT
THE DECISION WHETHER OR NOT TO APPROVE A STATE PROGRAM IS FORWARD
LOOKING AND THAT PAST PERFORMANCE SHOULD NOT BE THE ONLY OR PRIME
DECISION FACTOR.
THIS PART ESTABLISHES THE REQUIREMENTS FOR STATE RCRA, UIC, NPDES,
AND 404 PROGRAMS AND THE PROCESS FOR APPROVAL, REVISION, AND WITHDRAWAL
OF THESE STATE PROGRAMS. IT ALSO ESTABLISHES GUIDELINES FOR EPA
OVERVIEW OF THESE PROGRAMS, INCLUDING THE REQUIREMENT FOR A MEMORANDUM
OF AGREEMENT BETWEEN EPA AND THE STATE. ALTHOUGH STATE PROGRAMS ARE
ESTABLISHED AND OPERATED UNDER STATE LAW, APPROVED STATE RCRA, UIC,
NPDES, AND 404 PROGRAMS ALSO IMPLEMENT FEDERAL LAW AND OPERATE IN LIEU
OF FEDERALLY ADMINISTERED PROGRAMS. A PERMIT ISSUED BY A STATE UNDER
STATE LAW AFTER ITS PROGRAM HAS BEEN APPROVED SATISFIED THE FEDERAL
PERMIT REQUIREMENT. UNDER THE CWA, EPA RETAINS THE RIGHT TO OBJECT TO
("VETO") NPDES AND 404 PERMITS PROPOSED TO BE ISSUED BY APPROVED STATES.
PART 123 CONTAINS THE PROCEDURES FOR EPA OBJECTION TO THESE PERMITS.
PART 123 IS DIVIDED INTO A GENERAL SUBPART (SUBPART A) AND FIVE
PROGRAM SPECIFIC SUBPARTS (SUBPARTS B-F). UNLESS EXPRESSLY INDICATED,
THE REQUIREMENTS OF SUBPART A ARE GENERALLY APPLICABLE TO ALL OF THE
STATE PROGRAMS COVERED BY THIS PART, EXCEPT STATE RCRA PROGRAMS UNDER
INTERIM AUTHORIZATION; THEIR REQUIREMENTS ARE CONTAINED SOLELY IN
SUBPART F. SUBPARTS B, C, D AND E PROVIDE PROGRAM-SPECIFIC REQUIREMENTS
ADDITIONAL TO THOSE OF SUBPART A FOR THE RCRA FINAL AUTHORIZATION, UIC,
NPDES, AND 404 PROGRAMS, RESPECTIVELY.
THE PROCEDURES FOR ISSUING PERMITS, AS WELL AS THE MINIMUM TECHNICAL
REQUIREMENTS FOR SUCH PERMITS, ARE INCORPORATED INTO THE REQUIREMENTS
FOR STATE PROGRAMS BY CROSS-REFERENCES TO OTHER PROVISIONS OF EPA
REGULATIONS. FOR EXAMPLE, MANY OF THE PERMIT REQUIREMENTS CONTAINED IN
PART 122, WHICH IS APPLICABLE IN FULL TO EPA-ADMINISTERED PERMIT
PROGRAMS, ARE APPLICABLE TO STATE PROGRAMS THROUGH CROSS-REFERENCES IN
PART 123. BECAUSE EPA DOES NOT ISSUE SECTION 404 PERMITS (THESE ARE
ISSUED BY THE CORPS OF ENGINEERS IN THE ABSENCE OF AN APPROVED STATE
PROGRAM), PART 122 DOES NOT CONTAIN A SUBPART DEVOTED SOLELY TO 404
PERMITTING. INSTEAD, PART 123, SUBPART E CONTAINS THE ADDITIONAL PERMIT
PROCESSING REQUIREMENTS APPLICABLE TO STATE 404 PROGRAMS.
WITH ONE MAJOR EXCEPTION, THE REQUIREMENTS OF PART 123 REPRESENT THE
MINIMUM REQUIREMENTS WHICH STATES MUST MEET TO QUALIFY FOR APPROVAL.
STATES ARE ALLOWED SOME FLEXIBILITY IN HOW THEY IMPLEMENT THESE
REQUIREMENTS AND ARE FREE TO IMPOSE MORE STRINGENT CONTROLS PURSUANT TO
STATE LAW. (THE EXCEPTION, DISCUSSED BELOW, CONCERNS THE STATUTORY
REQUIREMENT UNDER RCRA THAT STATE HAZARDOUS WASTE PROGRAMS BE
"CONSISTENT" WITH OTHER APPROVED STATE PROGRAMS AND WITH THE FEDERAL
PROGRAM.)
MANY OF THE COMMENTS EPA RECEIVEDON PROPOSED PART 123 OBJECTED TO
THIS SCHEME OF SETTING MINIMUM REQUIREMENTS FOR STATE PROGRAMS AND
ALLOWING STATES FLEXIBILITY TO IMPLEMENT THOSE REQUIREMENTS. SOME
COMMENTERS FELT THAT THE REQUIREMENTS FOR STATE PROGRAMS WERE TOO
DETAILED AND INFLEXIBLE AND THAT EPA SHOULD SIMPLY APPROVE "EFFECTIVE"
STATE PROGRAMS. ON THE OTHER HAND, MANY NATIONAL COMPANIES FAVORED
NATIONALLY UNIFORM REQUIREMENTS AND RAISED OBJECTIONS TO ALLOWING
FLEXIBILITY AMONG THE STATES. AFTER CAREFUL CONSIDERATION, EPA REJECTS
BOTH THE SUGGESTION THAT STATE PROGRAM REQUIREMENTS SHOULD BE TOTALLY
FLEXIBLE AND THE SUGGESTION THAT THEY BE MUCH MORE RIGID.
EPA BELIEVES THAT NUMEROUS PROBLEMS WOULD OCCUR IF IT WERE TO SIMPLY
APPROVE "EFFECTIVE" STATE PROGRAMS WITHOUT SETTING MINIMUM REQUIREMENTS.
FIRST, SINCE MANY STATES ARE PRESENTLY WORKING ON DEVELOPING PROGRAMS,
SETTING SPECIFIC MINIMUM REQUIREMENTS ENABLES THESE STATES TO KNOW WITH
CERTAINTY WHETHER THEIR PROGRAM WILL BE APPROVABLE. FOR EXAMPLE, STATE
A IS WORKING ON A HAZARDOUS WASTE STATUTE. A CONTROVERSIAL ASPECT OF
THIS LEGISLATION IS THE LEVEL OF PENALTIES AND FINES FOR PROGRAM
VIOLATIONS. BY SPECIFICALLY ESTABLISHING THE MINIMUM LEVELS OF FINES
FOR STATE PROGRAMS IN PART 123, EPA HAS GIVEN CLEAR GUIDANCE. A
REQUIREMENT ONLY OF "EFFECTIVENESS," WHICH IS SUBJECT TO MULTIPLE
INTERPRETATIONS, WOULD SUBJECT THE STATE TO THE RISK OF DISAPPROVAL BY
EPA UNLESS IT ENACTED LEGISLATION IDENTICAL TO THE FEDERAL LAW.
IT WOULD BE MOST DIFFICULT FOR THE AGENCY TO APPROVE PROGRAMS BASED
ON "EFFECTIVENESS." TO GENERATE A RECORD THAT A STATE PROGRAM IS
"EFFECTIVE" WHICH WOULD WITHSTAND JUDICIAL SCRUTINY, EPA WOULD HAVE TO
LOOK MUCH BEYOND THE STATE'S SUBMISSION FOR APPROVAL. MOREOVER, UNLESS
EPA ESTABLISHED STANDARDS ON WHICH TO JUDGE WHETHER THE PROGRAM WAS
EFFECTIVE, IT WOULD BE DIFFICULT TO JUSTIFY APPROVING ONE STATE'S
PROGRAM AND DENYING ANOTHER'S. THESE REGULATIONS ESTABLISH THE SPECIFIC
CRITERIA WHICH ARE NEEDED IN ORDER TO MAKE AND JUSTIFY THESE APPROVAL
DECISIONS.
IN ADDITION, BECAUSE DECISIONMAKING BASED ON EFFECTIVENESS RELIES
PRIMARILY ON THE PAST PERFORMANCE OF A PROGRAM, IT WOULD BE PARTICULARLY
DIFFICULT TO JUDGE STATE PROGRAMS WHICH ARE NEW OR SUBSTANTIALLY
MODIFIED SINCE THESE PROGRAMS WOULD HAVE NO "TRACK-RECORD." MOREOVER,
PAST PERFORMANCE IS NOT AS IMPORTANT TO EPA AS EXPECTED FUTURE
PERFORMANCE. THE AGENCY DOES NOT INTEND TO DISAPPROVE ALL STATE
PROGRAMS WHICH HAVE HAD PROBLEMS IN THE PAST. IT VIEWS THE DECISION
WHETHER OR NOT TO APPROVE A STATE PROGRAM AS BEING FORWARD LOOKING; THE
AGENCY IS PRIMARILY CONCERNED THAT THE PROGRAM BE EFFECTIVE IN THE
FUTURE. /4/
FINALLY, ALL THREE OF THE STATUTES AUTHORIZING THE STATE PROGRAMS
COVERED BY THIS PART CONTEMPLATE SPECIFIC CRITERIA FOR STATE PROGRAMS
(SEE CWA SECTION 101(E), 402(B), 404(H), AND 304(I); RCRA SECTIONS
3006(A) AND 7004(B), AND SDWA SECTION 1421). THERE IS A GROWING BODY OF
CASE LAW WHICH SUGGESTS THAT IN THE ABSENCE OF SPECIFIC REQUIREMENTS EPA
WOULD NOT BE ABLE TO DENY A STATE'S REQUEST FOR APPROVAL.
ON THE OTHER HAND, EPA REJECTS THE SUGGESTION THAT STATE PROGRAMS BE
NATIONALLY UNIFORM (I.E., THAT THEY SHOULD MEET ALL THE REQUIREMENTS OF
PARTS 122 AND 124). THE AGENCY HAS CAREFULLY ANALYZED EACH OF THE PART
122 AND PART 124 REQUIREMENTS TO DETERMINE WHICH ARE ESSENTIAL TO STATE
PROGRAMS. IN EVALUATING WHICH REQUIREMENTS THE STATE SHOULD ADOPT, EPA
EMPLOYED THE FOLLOWING CRITERIA:
(1) IS THE REQUIREMENT NECESSARY TO PROTECT PUBLIC HEALTH AND THE
ENVIRONMENT?;
(2) IS THERE A NEED FOR NATIONAL UNIFORMITY WITH RESPECT TO THE
REQUIREMENT?;
(3) IS THE REQUIREMENT NECESSARY TO PROMOTE A PROGRAMMATIC
GOAL? (E.G., TO PROMOTE PUBLIC PARTICIPATION); AND
(4) IS THE REQUIREMENT NECESSARY UNDER FEDERAL LAW FOR STATE
PROGRAMS? (E.G., 5-YEAR PERMIT TERMS FOR NPDES AND 404 PERMITS).
MANY OF THE PROCEDURES OF PARTS 122 AND 124 DO NOT MEET THESE
CRITERIA, AND THEREFORE HAVE NOT BEEN MADE APPLICABLE TO STATE PROGRAMS.
FOR EXAMPLE, WHILE THE AGENCY BELIEVES THAT FACT SHEETS, DRAFT PERMITS,
AND 30 DAY PUBLIC COMMENT PERIODS ARE NECESSARY TO ENSURE THE
OPPORTUNITY FOR PUBLIC PARTICIPATION (AN EXPLICIT GOAL OF FEDERAL
ENVIRONMENTAL PROGRAMS), IT DOES NOT BELIEVE THAT THE PROCESS FOR
ADMINISTRATIVE APPEALS OF PERMITS NEED TO BE UNIFORM. INDEED, MOST
STATES HAVE THEIR OWN ADMINISTRATIVE PROCEDURES ACTS AND THERE WERE NO
COMMENTS SUGGESTING THAT THESE WERE INADEQUATE.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 088 OF 225
COSTLE DM ADMINISTRATOR
EPA
113587
REGULATIONS
JUNE 14, 1979 PROPOSAL?
THE FOLLOWING IS A DISCUSSION OF THE SIGNIFICANT COMMENTS RECEIVED
AND CHANGES MADE TO THE JUNE 14, 1979 PROPOSAL. EDITORIAL AND STYLISTIC
CHANGES HAVE BEEN MADE TO ALL SECTIONS AND ARE NOT DISCUSSED.
A FREQUENT COMPLAINT ABOUT THE PROPOSED CONSOLIDATED PERMIT
REGULATIONS WAS THAT THEY WERE TOO COMPLEX AND CONFUSING. SOME OF THE
COMMENTS NOTED THAT THERE WERE A GREAT NUMBER OF CROSS-REFERENCES IN
PART 123 AND A GENERAL BIFURCATION OF REQUIREMENTS BETWEEN SUBPART A AND
THE PROGRAM SPECIFIC SUBPARTS. INDEED, THIS BIFURCATION GENERATED MANY
OF THE CROSS-REFERENCES.
TO MITIGATE THIS PROBLEM EPA HAS FURTHER CONSOLIDATED REQUIREMENTS BY
MOVING SOME OF THE MATERIAL FOUND IN THE PROGRAM-SPECIFIC SUBPARTS INTO
THE GENERAL SUBPART. FOR EXAMPLE, THE CRITERIA FOR WITHDRAWAL OF STATE
PROGRAMS ARE FOUND IN SECTION 123.14. IN THE PROPOSAL, ONE ADDITIONAL
GROUND FOR WITHDRAWAL WAS INCLUDED FOR STATE RCRA PROGRAMS IN SUBPART B
AT SECTION 123.41. IN THESE REGULATIONS, EPA HAS MOVED PROPOSED SECTION
123.41 INTO THE SAME SECTION WHICH CONTAINS THE OTHER GROUNDS FOR
WITHDRAWAL BUT, TO AVOID CONFUSION, HAS CLEARLY LABELED IT AS BEING
APPLICABLE ONLY TO STATE RCRA PROGRAMS. WHILE THIS APPROACH MEANS THAT
SOME OF THE PROGRAM-SPECIFIC REQUIREMENTS ARE CONTAINED IN SUBPART A, IT
HAS RESULTED IN THE ELIMINATION OF MANY CROSS-REFERENCES AND SECTIONS.
SUBPART A IS NOT APPLICABLE TO STATE RCRA PROGRAMS UNDER INTERIM
AUTHORIZATION.
SOME COMMENTERS QUESTIONED WHETHER A STATE AUTHORIZED TO ADMINISTER
ONE OF THE PROGRAMS UNDER THIS PART WOULD BE REQUIRED TO SEEK AUTHORITY
TO ADMINISTER THE OTHERS. THE ANSWER IS NO. EPA HAS NEVER INTENDED
THESE REGULATIONS TO ACT IN SUCH A MANNER. WHILE EPA STRONGLY
ENCOURAGES STATES TO SEEK AUTHORITY TO ADMINISTER ALL PROGRAMS UNDER
THIS PART, AND HAS PROMULGATED THESE REGULATIONS IN ORDER TO SIMPLIFY
THE STATES' TASK IN ADMINISTERING MULTIPLE PROGRAMS, NO AFFIRMATIVE DUTY
TO DEVELOP SUCH PROGRAMS IS ESTABLISHED BY THESE REGULATIONS. IT SHOULD
BE NOTED, HOWEVER, THAT SECTION 1422 OF SDWA DOES REQUIRE STATES LISTED
BY THE ADMINISTRATOR TO DEVELOP UIC PROGRAMS. (ALL STATES HAVE NOW BEEN
SO LISTED.) IN ANSWER TO A SIMILAR COMMENT CONCERNING THE REQUIREMENT TO
CONSOLIDATE, STATES ARE NOT BEING FORCED TOCONSOLIDTE WHEN THEY
ADMINISTER MULTIPLE PROGRAMS. THESE REGULATIONS, HOWEVER, PROVIDE THE
FRAMEWORK FOR CONSOLIDATION FOR THOSE STATES THAT WISH TO DO SO. EPA
ENCOURAGES SUCH CONSOLIDATION.
MANY COMMENTERS EXPRESSED CONCERN ABOUT SECTION 123.1(G) (PROPOSED
SECTION 123.1(C)), REGARDING THE TRANSITION FROM AN EPA (OR CORPS OF
ENGINEERS IN THE CASE OF THE 404 PROGRAM) TO A STATE ADMINISTERED
PROGRAM, AND WANTED EPA TO RETAIN PERMIT ISSUANCE AUTHORITY OVER PERMITS
BEING PROCESSED AT THE TIME OF TRANSFER. POTENTIAL PERMITTEES INDICATED
IT WOULD BE UNFAIR TO MAKE AN APPLICANT WHOSE APPLICATION HAD BEEN
PROCESSED BY EPA START OVER AGAIN WITH THE STATE. WHILE THE AGENCY IS
SYMPATHETIC TO THESE CONCERNS, THE STATUTES PRECLUDE RETENTION OF PERMIT
ISSUANCE AUTHORITY AFTER STATE PROGRAM APPROVAL. FOR EXAMPLE, THE CLEAN
WATER ACT MANDATES THAT THE ADMINISTRATOR (OR THE SECRETARY IN THE CASE
OF 404 PROGRAMS) "SUSPEND THE ISSUANCE OF PERMITS' UPON APPROVAL OF A
STATE PROGRAM (SEE CWA SECTIONS 402(C) AND 404(H)). UPON APPROVAL THE
STATE HAS THE SOLE PERMIT ISSUING AUTHORITY. EPA CANNOT PRECLUDE STATES
FROM RECONSIDERING DECISIONS MADE BY EPA (OR THE CORPS) DURING THE
PROCESSING OF A PERMIT APPLICATION, AS SOME COMMENTERS REQURESTED. EPA
(OR THE CORPS) WILL, HOWEVER, TRANSFER ALL PENDING PERMIT APPLICATIONS
AND OTHER RELEVANT INFORMATION, INCLUDING THE RECORD OF ANY PROCEEDINGS,
TO THE STATE AT THE TIME OF PROGRAM APPROVAL, AND WILL WORK CLOSELY WITH
THE STATE TO AVOID UNNECESSARY REPETITION. EPA (OR THE CORPS) MAY
MAINTAIN JURISDICTION OVER PERMITS ISSUED PRIOR TO THE TRANSFER.
ARRANGEMENTS FOR THE ORDERLY ADMINISTRATION OF THESE PERMIS ARE USUALLY
INCLUDED IN THE MEMORANDUM OF AGREEMENT.
MOST OF WHAT WAS A COMMENT TO PROPOSED SECTION 123.1(E) HAS NOW BEEN
INCLUDED IN THE BODY OF THE REGULATION IN SECTION 123.1(J). THE
QUESTION OF WHO HAS RESPONSIBILITY FOR PROGRAM ADMINISTRATION OVER
ACTIVITIES ON INDIAN LANDS DREW MANY COMMENTS. OBJECTIONS WERE RAISED
TO THE REQUIREMENT THAT STATES MUST ADMINISTER THE PROGRAM OVER
ACTIVITIES ON INDIAN LANDS TO THE EXTENT THEY ARE AUTHORIZED TO DO SO,
COUPLED WITH THE REQUIREMENT OF PROPOSED SECTION 123.5 THAT THE STATE
ATTORNEY GENERAL ANALYZE THE STATE'S AUTHORITY OVER INDIAN LANDS.
BECAUSE STATES WILL LACK JURISDICTION, IN MOST INSTANCES, TO CONTROL
ACTIVITIES ON INDIAN LANDS, AND SINCE MANY OF THE COMMENTS SUGGESTED
THAT REQUIRING THE STATE TO TAKE A POSITION ON THE ISSUE COULD GENERATE
SIGNIFICANT POLITICAL CONTROVERSIES, EPA HAS MODIFIED THE REQUIREMENT OF
THE PROPOSAL. EPA WILL ASSUME THAT A STATE LACKS AUTHORITY UNLESS THE
STATE AFFIRMATIVELY ASSERTS AUTHORITY AND SUPPORTS ITS ASSERTION WITH AN
ANALYSIS FROM THE STATE ATTORNEY GENERAL. THUS, THE STATE WILL NOT BE
FORCED TO TAKE A POSITION UNLESS IT CHOOSES TO ASSERT JURISDICTION.
THE PROVISIONS IN SECTION 123.1(K) (PROPOSED SECTION 123.1(F))
CLARIFY THAT, EXCEPT IN REGARD TO CERTAIN ASPECTS OF STATE RCRA
PROGRAMS, STATES MAY PROVIDE MORE STRINGENT CONTROLS THAN DO THE
COMPARABLE FEDERAL PROGRAMS. PROVISIONS APPLICABLE UNDER AN
EPA-ADMINISTERED PROGRAM NEED NOT BE ADOPTED OR MAY BE MODIFIED BY A
STATE IF THEIR OMISSION OR MODIFICATION WOULD MAKE THE STATE PROGRAM
MORE STRINGENT THAN THE FEDERAL PROGRAM. FOR EXAMPLE, A STATE NPDES OR
404 PROGRAM NEED NOT PROVIDE FOR THE ISSUANCE OF GENERAL PERMITS, BUT
COULD INSTEAD REQUIRE ALL DISCHARGES TO RECEIVE AN INDIVIDUAL PERMIT.
LIKEWISE, NPDES STATES NEED NOT ADOPT UPSET OR BYPASS PROVISIONS SINCE
MORE STRINGENT CONTROL CAN BE ACHIEVED WITHOUT THEM.
MOST OF THE COMMENT INCLUDED IN PROPOSED SECTION 123.1(F) REGARDING
STATE PROGRAMS WITH A GREATER SCOPE OF COVERAGE THAN REQUIRED BY FEDERAL
LAW HAS BEEN INCORPORATED INTO THE REGULATION, SECTION 123.1(K) (2).
ALTHOUGH THE DEFINITIONS OF PART 122 APPLY TO THE TERMS USED IN PART
123, STATES ARE NOT REQUIRED TO ADOPT THE SAME DEFINITIONS. FOR
EXAMPLE, ALTHOUGH A STATE NPDES PROGRAM MUST COVER ALL "DISCHARGES OF
POLLUTANTS" INTO "NAVIGABLE WATERS," IT NEED NOT ADOPT THE SAME LANGUAGE
IN DEFINING THE SCOPE OF COVERAGE OF THE STATE PROGRAM. FOR EXAMPLE,
MANY NPDES STATES TIE THE PERMIT REQUIREMENT TO THE DISCHARGE OF
"WASTE," OR USE A DIFFERENT DEFINITION OF WATERS. THIS IS ACCEPTABLE AS
LONG AS THE STATE DOES NOT ADOPT LANGUAGE WHICH REDUCES THE SCOPE OF
COVERAGE OF THE STATE PROGRAM BELOW THE SCOPE OF COVERAGE OF THE FEDERAL
PROGRAM.
THIS SECTION ESTABLISHES THE DOCUMENTATION AND INFORMATION WHICH A
STATE MUST SUBMIT TO EPA BEFORE PROGRAM REVIEW CAN BEGIN. SINCE THE
TIME ALLOWED FOR EPA REVIEW OF A STATE PROGRAM SUBMISSION IS QUITE
LIMITED, IT IS ESSENTIAL THAT ALL THE NECESSARY DOCUMENTS BE SUBMITTED
BEFORE THE STATUTORY REVIEW PERIOD STARTS.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 089 OF 225
COSTLE DM ADMINISTRATOR
EPA
113588
REGULATIONS
THE AGENCY VIEWS EACH ELEMENT OF A SUBMISSION AS ESSENTIAL TO REVIEW
IN MAKING ITS APPROVAL DECISION. PROGRAM-SPECIFIC ADDITIONS HAVE BEEN
ADDED TO THE LIST OF REQUIRED ELEMENTS SO THAT ALL THE ELEMENTS ARE
CONTAINED IN ONE SECTION.
APPARENTLY, MANY COMMENTERS MISCONTRUED THE LANGUAGE OF PROPOSED
PARAGRAPH (A). THESE COMMENTERS THOUGHT THAT EPA'S 30-DAY REVIEW FOR
COMPLETENESS OF THE SUBMISSION OCCURRED BEFORE THE COMMENCEMENT OF THE
STATUTORY-REVIEW PERIOD AND POINTED OUT THAT TO DO SO WOULD NOT BE
LEGAL. EPA RECOGNIZES THAT THE STATUTORY-REVIEW PERIOD COMMENCES ON THE
DATE OF RECEIPT OF A COMPLETE SUBMISSION AND NOT ON THE DATE THE AGENCY
DETERMINES THE SUBMISSION IS COMPLETE. SECTION 123.3(B) HAS BEEN
REVISED TO CLARIFY THIS.
PROPOSED SECTION 123.3(B)(5), WHICH REQUIRED THAT A STATE SUBMIT
COPIES OF THE FORMS IT INTENDS TO USE IN ITS PROGRAM, HAS BEEN SHIFTED
TO SECTION 123.4. SUBMISSION OF THESE FORMS IS MORE APPROPRIATE AS A
COMPONENT OF THE PROGRAM DESCRIPTION THAT AS A SEPARATE REQUIREMENT.
ALL THE PROGRAM-SPECIFIC ADDITIONAL REQUIREMENTS FOR THE PROGRAM
DESCRIPTION (I.E., PROPOSED SECTIONS 123.34 (RCRA), 123.52 (UIC), AND
123.95 (404)) HAVE BEEN INCORPORATED INTO THIS SECTION AND CLEARLY
IDENTIFIED.
THE 404 REQUIREMENT FOR A SINGLE AGENCY HAS BEEN DROPPED SO AS NOT TO
PRECLUDE STATES FROM USING A "ONE-STOP" PERMITTING BODY FOR CERTAIN
TYPES OF FACILITIES, E.G., ENERGY FACILITIES. HOWEVER, EPA BELIEVES
THAT THE USE OF A SINGLE STATE 404 AGENCY IS A PREFERABLE APPROACH,
OFFERING MORE ADMINISTRATIVE SIMPLICITY AND SUBSTANTIVE CONSISTENCY, AND
AVOIDING MUCH POTENTIAL CONFUSION. WHERE MORE THAN ONE AGENCY HAS
RESPONSIBILITY FOR ADMINISTERING A STATE 404 PROGRAM, THE PROGRAM
SUBMISSION MUST SPECIFICALLY ADDRESS THIS DIVISION OF AUTHORITY, AND
DISCUSS HOW THE PROGRAM WILL BE ADMINISTERED AND ENFORCED BY THE STATE.
EACH RESPONSIBLE STATE AGENCY MUST HAVE FULL AUTHORITY IN THE CATEGORY
OF ITS JURISDICTION. SECTIONS 123.4(H)(7) AND (8) HAVE BEEN ADDED TO
ESTABLISH THESE REQUIREMENTS.
SOME COMMENTERS SUGGESTED THAT STATES BE REQUIRED TO DEMONSTRATE THAT
THE STAFF DESIGNATED TO ADMINISTER THE PROGRAM IS ADEQUATE. INDEED,
THIS IS THE PURPOSE OF SECTION 124.4(B). ALSO, TO AVOID CONFUSION,
SECTION 123.4(B) HAS BEEN CLARIFIED TO EXPLICITLY PROVIDE THAT ANY
AGENCY ADMINISTERING A PROGRAM MUST HAVE STATE-WIDE JURISDICTION. A
SERIES OF REGIONAL BOARDS CANNOT ADMINISTER A PROGRAM UNLESS THEY ARE
SUFFICIENTLY UNDER THE CONTROL OF A STATE AGENCY. THE PURPOSE OF THIS
REQUIREMENT IS TO AVOID INCONSISTENT PROGRAM ADMINISTRATION WITHIN A
STATE.
STATES WITH MORE THAN ONE AGENCY RESPONSIBLE FOR ADMINISTERING A
PROGRAM ARE ENCOURAGED TO DESIGNATE A LEAD AGENCY TO FACILITATE
COMMUNICATIONS BETWEEN EPA AND THE STATE AGENCIES HAVING PROGRAM
RESPONSIBILITY. STATE RCRA PROGRAMS MUST DESIGNATE A LEAD AGENCY. THE
LEAD AGENCY NEED NOT BE ONE OF THE AGENCIES ADMINISTERING THE PROGRAM.
THE REQUIREMENT FOR SUBMISSION BY STATES OF THE FORMS THEY WILL USE
IN THEIR PROGRAMS (PROPOSED SECTION 123.3(D)(5)) HAS BEEN RETAINED, BUT
IS NOW INCLUDED AS A PART OF THE PROGRAM DESCRIPTION (SECTION 123.4(D)).
SOME COMMENTERS POINTED OUT THAT PROGRAM SPECIFIC REQUIREMENTS FOR STATE
FORMS WERE NOT IDENTIFIED IN THE PROPOSAL. EPA HAS TRIED TO CLARIFY
THIS. OTHER COMMENTERS SUGGESTED THAT STATES BE REQUIRED TO USE UNIFORM
NATIONAL FORMS. EPA BELIEVES THAT STATES SHOULD HAVE THE FLEXIBILITY TO
DEVELOP THEIR OWN FORMS AS LONG AS THEY REQUIRE THE SAME BASIC
INFORMATION AS EPA. ONLY IN THE CASE OF THE NPDES DISCHARGE MONITORING
REPORT IS AN IDENTICAL FORM REQUIRED.
THE ATTORNEY GENERAL'S STATEMENT IS A CENTRAL PART OF ANY STATE
APPLICATION FOR PROGRAM APPROVAL. THE ATTORNEY GENERAL'S STATEMENT IS
HEAVILY RELIED UPON BY EPA IN DETERMINING WHAT AUTHORITIES EXIST IN A
STATE, AND THUS WHETHER THESE AUTHORITIES CAN ADEQUATELY OPERATE IN LIEU
OF FEDERAL REQUIREMENTS. WHILE EPA WILL REVIEW A STATE'S LEGAL
AUTHORITIES, A COMPLETE EVALUATION IS NOT POSSIBLE WITHOUT THE ATTORNEY
GENERAL'S INTERPRETATION OF VARIOUS PROVISIONS OF STATE LAW. THE
ATTORNEY GENERAL'S CERTIFICATION CAN ALSO BE VALUABLE WHERE A STATE
PROGRAM IS CHALLENGED FOR FAILURE TO CONFORM WITH FEDERAL REQUIREMENTS.
THE AGENCY WILL DEVELOP MODEL ATTORNEY GENERAL'S STATEMENT FORMATS FOR
USE IN MEETING THE REQUIREMENT OF THIS SECTION.
THE PROPOSAL (SECTION 123.5(A)) REQUIRED THAT THE AUTHORITIES CITED
BY THE ATTORNEY GENERAL BE IN FULL FORCE AND EFFECT AT THE TIME THE
STATEMENT IS SIGNED. THIS PROVISION HAS BEEN CHANGED SO AS TO PREVENT
UNNECESSARY DELAYS IN THE APPROVAL PROCES. THE ATTORNEY GENERAL MAY NOW
SIGN THE STATEMENT BEFORE THE AUTHORITIES ARE FULLY EFFECTIVE AS LONG AS
THE STATUTES AND REGULATIONS CITED BY THE ATTORNEY GENERAL HAVE BEEN
LAWFULLY ADOPTED PRIOR TO SIGNING, AND WILL BE FULLY EFFECTIVE WHEN THE
PROGRAM IS APPROVED. FOR EXAMPLE, THE PROVISION NOW ALLOWS THE ATTORNEY
GENERAL TO SIGN THE STATEMENT AT THE TIME OF PROMULGATION OF A NECESSARY
REGULATIONS, EVEN THOUGH ITS EFFECTIVENESS IS TO BE DELAYED.
IN RESPONSE TO COMMENTS THAT STATES NOT BE FORCED TO ASSERT
JURISDICTION OVER ACTIVITIES ON INDIAN LANDS, SECTION 123.5(B) HAS BEEN
CHANGED TO PROVIDE THAT THE ATTORNEY GENERAL NEED ANALYZE THE STATE'S
AUTHORITY OVER ACTIVITIES ON INDIAN LANDS ONLY WHEN THE STATE ASSERTS
SUCH JURISDICTION.
ONE COMMENTER SUGGESTED THATTHE SHOWING REQUIRED UNDER PROPOSED
SECTION 123.94(B) FOR STATE SECTION 404 PROGRAMS REGARDING SPECIFICATION
OF DISPOSAL SITES BE DELETED FOR LACK OF STATUTORY BASIS. EPA CONCURS
AND HAS DELETED THIS REQUIREMENT.
THE PROGRAM-SPECIFIC REQUIREMENTS FOR THE MEMORANDUM OF AGREEMENT
(I.E., PROPOSED SECTIONS 123.37 (RCRA), 123,72 (NPDES), AND 123.92
(404)) HAVE BEEN MOVED INTO THIS SECTION FOR CONVENIENCE.
ONE COMMENTER SUGGESTED THAT MOAS BE SUBMITTED TO RULEMAKING, PUBLIC
NOTICE, COMMENT AND HEARING PROCEDURES BEFORE EXECUTION BY THE STATE
DIRECTOR. ALL MOAS WILL BE SUBJECT TO PUBLIC SCRUTINY PRIOR TO PROGRAM
APPROVAL (WHEN THEY BECOME EFFECTIVE) IF NOT PRIOR TO THEIR SIGNING BY
THE STATE DIRECTOR. IN THE CASE OF RCRA AND UIC PROGRAMS, STATES ARE
REQUIRED TO ISSUE PUBLIC NOTICE OF, AND PROVIDE OPPORTUNITY FOR PUBLIC
COMMENT AND HEARINGS ON THEIR PROGRAMS, A PART OF WHICH IS THE MOA,
PRIOR TO SUBMITTAL TO EPA. STATES ARE NOT REQUIRED TO PROVIDE SIMILAR
PROCEDURES FOR NPDES AND 404 PROGRAMS, ALTHOUGH SOME MAY DO SO.
HOWEVER, UNDER ALL FOUR PROGRAMS, EPA WILL PROVIDE PUBLIC NOTICE OF THE
RECEIPT OF STATE PROGRAM SUBMISSIONS, INCLUDING MOAS, PROVIDE A PUBLIC
COMMENT PERIOD, AND SCHEDULE A PUBLIC HEARING.
SECTION 123.6(B) -- THIS PARAGRAPH IDENTIFIES THE BASIC REQUIREMENTS
OF THE MOA. THE NOTE UNDER SECTION 123.6(B)(2) POINTS OUT THAT THE
NATURE AND BASIS OF EPA REVIEW OF STATE PERMITS VARIES AMONG THE
PROGRAMS. UNDER THE CWA PROGRAMS, EPA HAS A STATUTORY DUTY TO REVIEW
STATE NPDES AND 404 PERMITS, AND MAY OBJECT TO PERMITS PROPOSED TO BE
ISSUED BY A STATE. EPA IS AUTHORIZED TO ISSUE THE NPDES PERMIT, OR THE
CORPS OF ENGINEERS THE 404 PERMIT, IF THE STATE DOES NOT MODIFY THE
PERMIT WITHIN A SPECIFIED PERIOD TO SATISFY EPA'S OBJECTIONS. UNDER
RCRA, EPA MAY NOT VETO A PROPOSED S-ATE PERMIT TO WHICH IT OBJECTS, BUT
MAY TERMINATE A PERMIT ISSUED BY A STATE TO THE EXTENT THE PERMIT DOES
NOT REFLECT COMMENTS MADE BY EPA WHICH IT STATED WERE NECESSARY TO
IMPLEMENT STATE PROGRAM REQUIREMENTS.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 090 OF 225
COSTLE DM ADMINISTRATOR
EPA
113589
REGULATIONS
UNDER THE UIC PROGRAM, EPA HAS NEITHER A STATUTORY RIGHT OF REVIEW
NOR THE ABILITY TO VETO A STATE PERMIT, BUT MAY MAKE ARRANGEMENTS WITH
THE STATE THROUGH THE MOA TO REVIEW AND COMMENT UPON STATE PERMITS.
UNDER ALL FOUR PROGRAMS, THE MOA SHOULD BE THE VEHICLE FOR SPECIFYING
THE DETAILS OF EPA'S REVIEW OF STATE PROGRAMS.
COMMENTS WERE RECEIVED ON PROPOSED SECTION 123.6(B)(4)(I) STATING
THAT EPA SHOULD ALWAYS NOTIFY STATES BEFORE CONDUCTING INSPECTIONS OF
FACILITIES OR ACTIVITIES WITHIN A STATE AND THAT THE SECTION SHOULD BE
MODIFIED ACCORDINGLY. EPA WILL, UNDER MOST CIRCUMSTANCES, PROVIDE
ADVANCE NOTIFICATION, HOWEVER, FOR CASES OF EMERGENCY AND WHEN OTHERWISE
NECESSARY, EPA MUST RETAIN THE RIGHT TO DISPENSE WITH ADVANCE
NOTIFICATION OF INSPECTIONS. SECTION 123.6(B)(4)(I) HAS THEREFORE BEEN
RETAINED IN ITS PROPOSED FORM.
PROPOSED SECTION 123.6(B)(4)(II) CONCERNING "FISCAL ARRANGEMENTS FOR
EFFECTIVE LITIGATION SUPPORT" HAS BEEN DROPPED. COMMENTERS INDICATED
THAT THEY DID NOT UNDERSTAND THE NATURE OF THE REQUIREMENT. THE
PROPOSAL INCLUDED THIS AS A MEANS TO ENSURE THAT ENFORCEMENT ACTIVITIES
ARE ADEQUATELY FUNDED, PARTICULARLY WHEN ENFORCEMENT IS CONDUCTED BY AN
OFFICE OUTSIDE THE APPROVED STATE AGENCY (E.G., AN ATTORNEY GENERAL'S
OFFICE). ALTHOUGH EPA REMAINS CONCERNED ABOUT ENSURING ADEQUATE FUNDING
FOR ENFORCEMENT IT DECIDED THAT THIS IS APPROPRIATELY HANDLED IN THE
CONTEXT OF A STATE/EPA AGREEMENT RATHER THAN THROUGH THE MOA.
A NEW PROVISION HAS BEEN ADDED TO SECTION 123.6(B)(4) REQUIRING THAT
THE MOA INCLUDE ARRANGEMENTS FOR THE COORDINATION OF ENFORCEMENT
ACTIVITIES BY EPA AND THE STATE.
SOME COMMENTERS WERE CONCERNED THAT SECTION 123.6(B)(5), REGARDING
THE JOINT PROCESSING OF PERMITS REQUIRED BY EPA AND A STATE UNDER
DIFFERENT PROGRAMS, COULD LEAD TO DELAYS IN PERMIT ISSUANCE. THEY
BELIEVED THAT APPROVAL OF ONE PERMIT WOULD HINGE ON COMPLIANCE WITH
ANOTHER. THE INTENT OF THIS PARAGRAPH HAS BEEN MISINTERPRETED. FIRST,
JOINT PROCESSING OF PERMITS IS NOT REQUIRED BY THE REGULATIONS, BUT
RATHER IS AT THE OPTION OF EPA AND THE STATE. IT IS INTENDED TO PROMOTE
EFFICIENCY AND AVOID DUPLICATION AND INCONSISTENCY. WHERE JOINT
PROCESSING IS CHOSEN, THE AGREEMENT COULD PROVIDE FOR SEPARATING OUT
TROUBLESOME PERMITS TO AVOID DELAYS IN ISSUING THE OTHERS. SECTION
124.4 PROVIDES FOR THIS SEPARATION. FURTHER, THE PUBLIC WOULD HAVE AN
OPPORTUNITY TO COMMENT ON ANY PROVISION REGARDING JOINT PROCESSING
BEFORE PROGRAM APPROVAL. SECTION 123.6(B)(5) HAS BEEN RETAINED.
ONE COMMENTER SUGGESTED THAT WHERE MORE THAN ONE AGENCY IN A STATE
ADMINISTERS A GIVEN PROGRAM THE MOA SHOULD REQUIRE INTRA -STATE
COORDINATION. SUCH COORDINATION HAS NOT BEEN MADE AN MOA REQUIREMENT.
WHILE PROCEDURES FOR INTRA-STATE COORDINATION MAY BE REFERRED TO IN E
MOA, THEY ARE BETTER DISCUSSED INTHE PROGRAM DESCRIPTION THAN IN THE
MOA. SECTION 123.4(B) REQUIRES A DESCRIPTION OF THESE INTRA-STATE
PROCEDURES FOR COORDINATION. IN THE CASE OF STATE 404 PROGRAMS A
MEMORANDUM OF UNDERSTANDING BETWEEN THE RESPONSIBLE STATE AGENCIES WILL
NEED TO BE INCLUDED IN THE PROGRAM DESCRIPTION WHEN MORE THAN ONE AGENCY
SEEKS TO ADMINISTER THE PROGRAM, AND THE RESPONSIBLE AGENCIES WILL ALL
NEED TO BE PARTIES TO THE MOA UNDER THIS SECTION.
SECTION 123.6(F) -- SEVERAL COMMENTS WERE RECEIVED ON THIS PARAGRAPH
(PROPOSED SECTION 123.92(A)), WHICH PERTAINS TO THE SCOPE OF WAIVERS OF
PERMIT REVIEW AVAILABLE TO THE REGIONAL ADMINISTRATOR UNDER STATE 404
PROGRAMS. THESE COMMENTS EXPRESSED TWO OPPOSITE VIEWPOINTS; SOME
SUGGESTED THAT VIRTUALLY NO WAIVERS BE GRANTED, WHILE OTHERS SUGGESTED
THAT THE STATE BE GIVEN A BLANKET WAIVER OF EPA PERMIT REVIEW UPON
PROGRAM APPROVAL. EPA CONTINUES TO TAKE AN INTERMEDIATE POSITION BASED
ON THE EXPRESS LANGUAGE OF SECTIONS 404(J) AND (K) OF CWA, WHICH
PROVIDES EPA AUTHORITY TO REVIEW STATE PERMITS, BUT ALLOWS WAIVERS FOR
SPECIFIC CLASSES AND CATEGORIES OF ACTIVITIES.
CERTAIN TYPES OF ACTIVITIES ARE LIKELY TO HAVE SUBSTANTIAL
ENVIRONMENTAL EFFECTS, AND EPA FEELS THAT IT SHOULD ALWAYS HAVE AN
OPPORTUNITY TO REVIEW PERMIT APPLICATIONS AND DRAFT PERMITS FOR THESE
ACTIVITIES. ONE SUCH CATEGORY IS "MAJOR DISCHARGES." A COMMENTER
SUGGESTED THAT A DEFINITION FOR "MAJOR DISCHARGER" BE FORMULATED AND
APPLIED NATIONWIDE. EPA BELIEVES THAT DEVELOPMENT OF A NATIONWIDE
DEFINITION IS UNREALISTIC GIVEN THE VARIETY OF DISCHARGE AND AQUATIC
RESOURCE COMBINATIONS WITHIN EACH STATE, AND HAS THEREFORE DECIDED THAT
SUCH A DEFINITION IS BETTER PLACED IN INDIVIDUAL STATE MOA'S WITH THE
REGIONAL ADMINISTRATOR.
ANOTHER COMMENTER REQUESTED AN ESCALATION PROCEDURE FOR RESOLVING
DISAGREEMENTS AMONG FEDERAL AGENCIES ON THE SCOPE OF WAIVERS. EPA
DISAGREES. THE WAIVER PROVISION UNDER SECTION 404(K) DOES NOT REQUIRE
THE CONCURRENCE OF OTHER FEDERAL AGENCIES WITH AN OPPORTUNITY TO COMMENT
ON WAIVERS BY PROVIDING FOR CONSULTATION WITH THE CORPS OF ENGINEERS,
FISH AND WILDLIFE SERVICE, AND NATIONAL MARINE FISHERIES SERVICE ON THE
SCOPE OF THE WAIVERS TO BE CONTAINED INDE STATE/EPA MOA. SINCE THE MOA
IS PART OF THE STATE PROGRAM SUBMITTAL, THESE AGENCIES WILL HAVE AN
OPPORTUNITY TO COMMENT ON THE WAIVERS DURING THE OFFICIAL REVIEW PROCESS
REQUIRED BY SECTIONS 404(G)(2) AND (3). FURTHERMORE, EPA HAS REQUIRED
THAT PROCEDURES FOR MOA MODIFICATION BE CONSISTENT WITH THOSE FOR MOA
DEVELOPMENT. THUS, CONSULTATION WITH THESE OTHER INVOLVED FEDERAL
AGENCIES WILL ALSO TAKE PLACE BEFORE ANY FURTHER WAIVERS ARE
IMPLEMENTED.
ONE COMMENTER FELT THATTHE TERM "DISCHARGE WHICH MAY AFFECT THE
WATERS OF ANOTHER STATE" IN SECTION 123.6(F)(1)(I)(A) NEEDED FURTHER
DEFINITION TO ESTABLISH A REASONABLE BASIS FOR ITS USE AS A CRITERION.
ALTHOUGH THE TERM HAS NOT BEEN FURTHER DEFINED BECAUSE IT DERIVES
DIRECTLY FROM THE REQUIREMENTS OF CWA SECTION 404(H)(1), IT IS MEANT TO
APPLY TO DISCHARGES WHICH MAY CAUSE OR CONTRIBUTE TO THE LIKELIHOOD OF A
LONG OR SHORT TERM CHEMICAL, PHYSICAL, OR BIOLOGICAL CHANGE IN THE OTHER
STATE'S WATERS, OR WHICH MAY VIOLATE THE OTHER STATE'S WATER QUALITY
STANDARDS. IN RESPONSE TO A NUMBER OF COMMENTS, EPA HAS EXPANDED THE
LIST OF CRITICAL AREAS NOT SUBJECT TO WAIVER IN SECTION
123.6(F)(1)(I)(C).
EPA AGREES WITH ONE COMMENTER WHO FELT THAT IF NO PROBLEMS ARE
ENCOUNTERED WITH PERMITS THAT ARE WAIVED, THE AGENCY SHOULD CONSIDER
EXPANDING THE TYPES OF DISCHARGES FOR WHICH REVIEW IS WAIVED. HOWEVER,
WHEN EPA FINDS THAT INDIVIDUAL PERMIT REVIEW IS NEEDED TO IMPLEMENT THE
GOALS OF SECTION 404, THE AGENCY RESERVES THE RIGHT TO WITHDRAW THE
WAIVER UNDER SECTION 123.6(G)(1). THE ONLY WAY THE AGENCY HAS OF
DETERMINING THIS IS BY MONITORING PERMIT APPLICATIONS WITHIN WAIVED
CATEGORIES WHEN NEEDED.
THIS PROPOSED SECTION HAS BEEN DROPPED BECAUSE IT WAS TOO VAGUE AND
GENERALIZED. PROGRAM-SPECIFIC LANGUAGE HAS BEEN DEVELOPED INSTEAD.
GENERALLY SPEAKING, STATE LAW MUST PROVIDE FOR REGULATION OF ALL
ACTIVITIES REGULATED BY THE FEDERAL PROGRAM.
THIS SECTION WAS PROPOSED AS SECTION 123.8. IT LISTS THE PROVISIONS
OF PARTS 122 AND 124 WITH WHICH STATE PROGRAMS MUST COMPLY. THE
PROGRAM-SPECIFIC ADDITIONAL PERMIT REQUIREMENTS (PROPOSED SECTIONS
123.39 (RCRA), 123.57 (UIC), AND 123.73 (NPDES)) HAVE BEEN MOVED INTO
THIS SECTION FOR CONVENIENCE. IN ADDITION, THE CROSS-REFERENCED SECTION
OF PARTS 122 AND 124 NOW SPECIFY, IN THEIR HEADINGS, THAT THEY ARE
APPLICABLE TO STATE PROGRAMS. IT SHOULD BE NOTED THAT STATES ARE NOT
PRECLUDED FROM ADOPTING ANY OF THE OTHER PROVISIONS OF PARTS 122 AND
124. HOWEVER, ONLY THE PROVISIONS LISTED IN SECTION 123.7 ARE
SPECIFICALLY REQUIRED OF STATE PROGRAMS.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 091 OF 225
COSTLE DM ADMINISTRATOR
EPA
113590
REGULATIONS
MANY COMMENTS SUGGESTED THAT THE REQUIREMENTS APPLICABLE TO STATES
WERE TOO DETAILED AND INFLEXIBLE. IN RESPONSE, EPA REANALYZED THE
SECTIONS LISTED IN THE PROPOSAL (SECTION 123.8) WHICH WERE APPLICABLE TO
ALL PROGRAMS TO DETERMINE IF ANY SECTIONS COULD BE ELIMINATED AS STATE
REQUIREMENTS, OR MADE APPLICABLE TO STATES IN A MANNER THAT WOULD
PROVIDE THE STATES WITH GREATER FLEXIBILITY. AS A RESULT OF THIS
ANALYSIS, CERTAIN SECTIONS AND SUBSECTIONS OF PARTS 122 AND 124 ARE NO
LONGER APPLICABLE TO STATES (I.E., THE REQUIREMENT FOR A STATEMENT OF
BASIS AND SELECTED PROVISIONS REGARDING PERMIT ISSUANCE, DRAFT PERMITS,
AND PUBLIC NOTICE).
EPA CONSIDERED THE IDEA OF SEPARATING THE REMAINING GENERAL STATE
PROGRAM REQUIREMENTS SO AS TO ESTABLISH TWO LEVELS OF APPLICABILITY, ONE
OF WHICH WOULD ALLOW STATES GREATER FLEXIBILITY IN HOW THEY COULD
IMPLEMENT SELECTED REQUIREMENTS. THE IDEA WAS REJECTED, HOWEVER,
BECAUSE OF THE CONFUSION THIS BIFURCATION WOULD CAUSE AMONG STATES
SEEKING TO DETERMINE WHAT AUTHORITIES WOULD SATISFY THE REQUIREMENTS OF
PROVISIONS PLACED AT VARYING LEVELS AND BECAUSE OF THE DIFFICULTY OF
JUSTIFYING THE PLACEMENT OF A REQUIREMENTS AT A GIVEN LEVEL.
THE REQUIREMENT THAT STATE PROGRAMS HAVE LEGAL AUTHORITY TO IMPLEMENT
AND BE ADMINISTERED IN CONFORMACE WITH THE LISTED PROVISIONS HAS BEEN
RETAINED. THIS REQUIREMENT DOES NOT MEAN THAT STATES MUST IMPLEMENT
PROVISIONS IDENTICAL TO THE LISTED PROVISIONS; ONLY THAT THEY ESTABLISH
REQUIREMENTS WHICH ARE AT LEAST AS STRINGENT AS THE CORRESPONDING LISTED
PROVISIONS. ASSISTANCE WILL BE MADE AVAILABLE TO STATES BY EPA ON HOW
THEY CAN SATISFY THIS SECTION.
COMMENTS WERE ALSO RECEIVED EXPRESSING THE BELIEF THAT ALL OF THE
PROVISIONS OF PARTS 122 AND 124 SHOULD BE MADE APPLICABLE TO STATES. AS
DISCUSSED EARLIER IN THIS PREAMBLE, THAT NOTION WAS REJECTED. COMMENTS
WERE RECEIVED, AS WELL, REGARDING THE FAILURE OF SECTION 123.7 TO APPLY
SPECIFIC PROVISIONS OF PARTS 122 AND 124 TO STATES. ONE COMMENTER
RECOMMENDED THAT THE TRANSFER PROVISIONS OF PART 122 SHOULD APPLY TO
STATES. THIS RECOMMENDATION HAS BEEN ADOPTED. TRANSFER REQUIREMENTS
WERE MADE APPLICABLE TO NPDES STATES INDE AGENCY'S JUNE 7, 1979, NPDES
REGULATION (44 FR 32854) AND ARE NOW MADE APPLICABLE TO THE OTHER
PROGRAMS UNDER THIS PART TO ASSURE THAT THE STATE DIRECTOR IS GIVEN
NOTICE OF A TRANSFER OF OWNERSHIP AND MAY REACT TO IT. OTHER COMMENTERS
SUGGESTED THAT STATES BE REQUIRED TO PROTECT CONFIDENTIAL INFORMATION TO
THE SAME EXTENT AS EPA. THIS SUGGESTION HAS BEEN REJECTED. SECTION
123.7(A) (13) REQUIRES STATES TO IMPLEMENT SECTIONS 122.19(B)-(D). THIS
MEANS THAT STATES MUST GRANT PUBLIC ACCESS TO AT LEAST THE SAME TYPE OF
INFORMATION AS DOES EPA. EPA WILL NOT, HOWEVER, DICTATE HOW A STATE
MUST TREAT OTHER INFORMATION SUBMITTED TO IT. SECTION 122.19(A)
(PROPOSED SECTION 122.16(A)), THEREFORE, HAS NOT BEEN MADE APPLICABLE TO
STATES. FINALLY, A COMMENTER REQUESTED THAT STATE NOTICE AND HEARING
PROCEDURES FOR RCRA PERMITS BE THE SAME AS EPA PROCEDURES. THE
PROVISIONS OF PART 124 REGARDING NOTICE AND HEARING WERE, IN THE
PROPOSAL, AND RAMAIN, IN THESE FINAL REGULATIONS, APPLICABLE TO STATES
TO THE EXTENT NECESSARY TO ASSURE ADEQUATE PUBLIC PARTICIPATION. EPA
BELIEVES THAT BEYOND THESE MINIMUM REQUIREMENTS, STATES SHOULD HAVE
FLEXIBILITY TO ESTABLISH THEIR OWN ADMINISTRATIVE PROCEDURES.
THE LIST OF APPLICABLE REQUIREMENTS IN SECTION 123.7(A) HAS BEEN
ADJUSTED TO REFLECT THE TRANSFER OF THOSE PERMIT APPLICATION REQUIREMENT
PROVISIONS COMMON TO ALL PROGRAMS FROM THE INDIVIDUAL PROGRAM SUBPARTS
OF PART 122 TO THE GENERAL SUBPART, SECTION 122.4. IT IMPOSES NO
ADDITIONAL REQUIREMENTS ONTHE STATES. THIS CHANGE APPEARS AT SECTION
123.7(A)(1). THE CORRESPONDING PROVISION OF PART 124, SECTION 124.3(A),
HAS ALSO BEEN MADE APPLICABLE. ALSO, AN ADDITION HAS BEEN MADE TO THE
LIST OF APPLICABLE REQUIREMENTS, SECTION 123.7(A)(15), TO CLARIFY THAT A
DRAFT PERMIT MUST BE PREPARED AND CIRCULATED BY APPROVED STATES BEFORE A
PERMIT IS MODIFIED OR REVOKED AND REISSUED AS REQUIRED BY SECTION 124.5.
THIS REQUIREMENTS IS NOT APPLICABLE TO STATE 404 PERMITS WHEN NO DRAFT
PERMIT IS PREPARED PRIOR TO INITIAL PERMIT ISSUANCE.
THE LANGUAGE IN PROPOSED SECTION 123.8 HAS BEEN AMENDED, IN RESPONSE
TO COMMENTERS' CONCERN THAT THE SECTION LIMITED STATE AUTHORITY TO
IMPOSE REQUIREMENTS MORE STRINGENT THAT FEDERAL REQUIREMENTS, TO MAKE
CLEAR THAT THE APPLICABILITY OF THE LISTED SECTIONS TO STATE PROGRAMS
DOES NOT INFRINGE ON A STATES' RIGHT TO BE MORE STRINGENT. FOR EXAMPLE,
STATE NPDES PROGRAMS NEED NOT ADOPT THE PROVISIONS FOR BYPASS AND UPSET
IN SECTION 122.60. HOWEVER, WHEN STATES INCLUDE PROVISIONS ON BYPASS
AND UPSET, THESE MAY NOT BE LESS STRINGENT THAT THOSE ALLOWED BY EPA
REGULATIONS.
THIS SECTION WAS PROPOSED AS SECTION 123.9. THE ADDITIONAL
REQUIREMENTS FOR STATE NPDES COMPLIANCE EVALUATION PROGRAMS (PROPOSED
SECTION 123.80) HAVE BEEN INCLUDED IN THIS SECTION FOR CONVENIENCE.
A COMMENT WAS RECEIVED SUGGESTING THAT STATES NOT BE REQUIRED TO MAKE
THE INFORMATION GATHERED UNDER SECTION 123.8(B)(1) AVAILABLE TO EPA IF
IT IS PREPARED IN ANTICIPATIONOF OR IS IN ANY WAY ASSOCIATED WITH
LITIGATION. EPA CANNOT ACCEPT THIS SUGGESTION. EPA DOES NOT INTEND TO
INTERFERE WITH STATE LITIGATION. HOWEVER, THE INFORMATION COLLECTED BY
A STATE REGARDING PERSONS SUBJECT TO REGULATION WHO HAVE FAILED TO
COMPLY WITH PERMIT APPLICATION OR OTHER PROGRAM REQUIREMENTS MUST BE
AVAILABLE TO EPA IN ORDER FOR EPA TO PERFORM ITS STATUTORY
RESPONSIBILITIES TO OVERSEE APPROVED STATE PROGRAMS. THE INFORMATION
WHICH THIS COMMENTER SEEKS WITHHELD FROM EPA IS INFORMATION VITAL TO
EPA'S OVERSIGHT OF STATE ENFORCEMENT ACTIVITIES. SECTION 122.8(B)(1)
HAS BEEN RETAINED.
ONE COMMENTER REQUESTED THAT SECTION 123.8(B) (2) INDICATE HOW OFTEN
PERIODIC INSPECTIONS SHOULD BE MADE. EPA AGREES THAT THE ESTABLISHMENT
OF SUCH SCHEDULES IS DESIRABLE, BUT FEELS THAT IT IS BETTER HANDLED ON A
STATE BY STATE AND YEAR BY YEAR BASIS BECAUSE OF THE CONTINUALLY
CHANGING NATURE OF STATE PERMIT ACTIVITY. SCHEDULES FOR PERIODIC
INSPECTION, THEREFORE, WILL CONTINUE TO BE ESTABLISHED IN ANNUAL
STATE/EPA AGREEMENTS.
THIS SECTION WAS PROPOSED AS SECTION 123.10. THE REQUIREMENTS FOR
STATE ENFORCEMENT PROGRAMS GENERATED MORE COMMENTS THAN ANY OTHER
SECTION OF SUBPART A. THE PROPOSAL GENERALIZED THE REQUIREMENTS TO A
DEGREE WHICH MADE THEM CONFUSING AND VAGUE. THEREFORE, EPA HAS CHOSEN
TO SET SOME OF THE REQUIREMENTS ON A PROGRAM-SPECIFIC BASIS CLOSELY
TRACKING THE EPA ENFORCEMENT AUTHORITY IN EACH OF THE PROGRAMS.
MOST OF THE CONTROVERSY ON THIS SECTION CENTERED ON THE AMOUNTS OF
CIVIL AND CRIMINAL PENALTIES OR FINES RECOVERABLE UNDER STATE LAW AND
THE TYPES OF VIOLATIONS TO WHICH THEY APPLY. EPA'S PROPOSAL WOULD HAVE
REQUIRED STATES TO HAVE ESSENTIALLY THE SAME ENFORCEMENT CAPABILITIES AS
EPA, INCLUDING THE ABILITY TO COLLECT THE SAME MAXIMUM FINES AND
PENALTIES. THE FINAL REGULATION ADOPTS A SIMILAR APPROACH, BUT AFFORDS
A GREATER DEGREE OF FLEXIBILITY ON THE AMOUNTS RECOVERABLE. ALL STATE
PROGRAMS MUST HAVE BOTH CIVIL PENALTIES AND CRIMINAL SANCTIONS. FINES
AND PENALTIES MUST BE RECOVERABLE UNDER STATE LAW; A STATE PROGRAM
CANNOT RELY ON THE LEVYING OF FEDERAL FINES, AS ONE COMMENTER SUGGESTED,
SINCE THE STATE, NOT EPA, IS TO HAVE PRIMARY ENFORCEMENT RESPONSIBILITY
UPON PROGRAM APPROVAL.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 092 OF 225
COSTLE DM ADMINISTRATOR
EPA
113591
REGULATIONS
THE VIOLATIONS FOR WHICH THESE FINES AND PENALTIES MUST BE
RECOVERABLE, WHICH SOME COMMENTERS CLAIMED WERE SET OUT TOO BROADLY IN
THE PROPOSAL, ARE NOW CLEARLY SET OUT AND COINCIDE WITH EPA'S AUTHORITY
UNDER EACH STATUTE.
THE AGENCY HAS DETERMINED THAT IT IS NECESSARY TO SET SPECIFIC
MINIMUM LEVELS OF FINES AND PENALTIES WHICH STATES MUST HAVE THE
AUTHORITY TO RECOVER IN ORDER TO ENSURE EFFECTIVE STATE ENFORCEMENT
PROGRAMS. WITHOUT SUCH MINIMUM LEVELS, EPA WOULD OFTEN BE FORCED TO
TAKE ITS OWN ENFORCEMENT ACTION IN APPROVED STATES BECAUSE THE STATE
ACTION IMPOSED INADEQUATE PENALTIES. SUCH EPA ACTION WHILE AVAILABLE AS
A BACKUP, IS NOT INTENDED TO BE RELIED UPON AS THE PRIME ENFORCEMENT
MECHANISM IN APPROVED STATES. ACCORDINGLY, THE AGENCY HAS SET MINIMUM
LEVELS OF FINES AND PENALTIES. HOWEVER, IT HAS REDUCED THE LEVELS BELOW
THOSE AVAILABLE TO EPA BASED ON THE LARGE VOLUME OF COMMENTS FROM STATES
REQUESTING SUCH RELIEF.
IN THE AREA OF STATE RCRA PROGRAMS, THE MINIMUM LEVELS OF FINES AND
PENALTIES ARE SET AT $10,000 PER DAY AT THE SUGGESTION OF THE NATIONAL
GOVERNORS ASSOCIATION. ALSO, IMPRISONMENT FOR AT LEAST SIX MONTHS MUST
BE AVAILABLE. THESE ARE THE MINIMUMS WHICH MUST BE PRESENT IN A STATE
PROGRAM BEFORE IT CAN BE CONSIDERED TO "PROVIDE ADEQUATE ENFORCEMENT"
UNDER SECTION 3008(B) OF RCRA. THE VIOLATIONS FOR WHICH CRIMINAL
REMEDIES MUST BE OBTAINABLE WAS CHANGED FROM "ANY PROGRAM VIOLATION"
BECAUSE MANY COMMENTERS POINTED OUT THAT EPA CANNOT OBTAIN CRIMINAL
REMEDIES FOR ANY PROGRAM VIOLATION. THE SITUATIONS WHERE CRIMINAL
REMEDIES MUST BE AVAILABLE NOW CLOSELY PARALLELS THE LANGUAGE OF SECTION
3008 OF RCRA.
THE LEVELS OF FINES AND PENALTIES FOR STATE NPDES PROGRAMS HAS BEEN
ADJUSTED TO THE SAME LEVEL REFLECTED IN PAST AGENCY POLICY. ALL
CURRENTLY APPROVED NPDES STATES MEET THE FINAL REGULATION.
THE LEVELS OF CIVIL PENALTIES AND CRIMINAL FINES FOR STATE UIC
PROGRAMS HAVE BEEN SIMILARLY REDUCED BELOW FEDERAL AMOUNTS. THE MINIMUM
CIVIL PENALTIES AND CRIMINAL FINES HAVE BEEN SET AT $2,500 AND $5,00 PER
DAY, RESPECTIVELY. HOWEVER, IN THE CASE OF CLASS II WELLS, STATES NEED
ONLY HAVE THE AUTHORITY TO RECOVER A CIVIL PENALTY OF $1,000 PER DAY,
AND MAY SUBSTITUTE THE AUTHORITY FOR PIPELINE (OR PRODUCTION) SEVERANCE
FOR CRIMINAL FINES. SEVERAL COMMENTERS NOTED THAT THEY HAD THIS
AUTHORITY FOR PIPELINE SEVERANCE AVAILABLE TO THEM, AND THAT IT PROVED
TO BE MORE EFFECTIVE THAN MONETARY FINES. EPA AGREES THAT THIS MAY BE
PREFERABLE AND HAS, THEREFORE, ALLOWED STATES TO CHOOSE BETWEEN PIPELINE
SEVERANCE AND CRIMINAL FINES FOR CLASS II WELLS.
ONE COMMENTER SUGGESTED THAT THE REQUIREMENTS OF SECTION 123.9 (A)(A)
(PROPOSED SECTION 123.10(A)(1)) -- THAT STATES HAVE THE AUTHORITY TO
RESTRAIN IMMEDIATELY UNAUTHORIZED ACTIVITIES ENDANGERING PUBLIC HEALTH
OR THE ENVIRONMENT -- WAS TOO BROAD FOR PURPOSES OF THE UIC PROGRAM, AND
THAT ENDANGERMENT OF THE ENVIRONMENT SHOULD BE ELIMINATED AS A CAUSE FOR
IMMEDIATE ACTION. THIS COMMENTER CITED SECTION 1431 OF SDWA WHICH
ALLOWS IMMEDIATE ACTION ONLY WHEN THERE IS AN "IMMINENT AND SUBSTANTIAL
ENDANGERMENT OF THE ENVIRONMENT SHOULD BE ELIMINATED AS A CAUSE FOR
IMMEDIATE ACTION. THIS COMMENTER CITED SECTION 1431 OF SDWA WHICH
ALLOWS IMMEDIATE ACTION ONLY WHEN THERE IS AN "IMMINENT AND SUBSTANTIAL
ENDANGERMENT TO THE HEALTH OF PERSONS." SECTION 1431 IS NOT APPLICABLE
TO STATE UIC PROGRAMS. FURTHER, SECTION 1421 (A) (1) IS INTENDED TO
ASSURE EFFECTIVE PROGRAMS. REFERENCE TO ENDANGERMENT OF (THREATENING)
THE ENVIRONMENT HAS BEEN RETAINED IN SECTION 123.9(A)(1) BECAUSE IT IS A
NECESSARY ELEMENT OF STATE ENFORCEMENT PROGRAMS.
THE ALTERNATIVE IN PROPOSED SECTION 123.10(A) (1) WHICH ALLOWED
STATES TO CHOOSE HAVING AVAILABLE EITHER THE REMEDY OF IMMEDIATELY
NOTIFYING THE REGIONAL ADMINISTRATOR BY TELEPHONE OF UNAUTHORIZED
ACTIVITIES OR THE REMEDY OF IMMEDIATELY AND EFFECTIVELY RESTRAINING SUCH
ACTIVITIES BY ORDER OR BY SUIT HAS BEEN DROPPED. THE LATTER REMEDY IS
NOW REQUIRED OF ALL STATE PROGRAMS. THE REMEDY OF TELEPHONE
NOTIFICATION WAS DROPPED AS AN OPTION SINCE IT IS AN OBVIOUS ABILITY OF
ALL STATES. THE MORE IMPORTANT AUTHORITY OF BEING ABLE TO IMMEDIATELY
RESTRAIN AN UNAUTHORIZED ACTIVITY IS ONE WHICH CAN BE SATISFIED EITHER
WITH AN ADMINISTRATIVE CEASE AND DESIST ORDER OR WITH THE ABILITY TO
SEEK IN COURT A TEMPORARY RESTRAINING ORDER, AN ABILITY WHICH FEW, IF
ANY, STATES LACK.
STATES ARE STILL REQUIRED TO HAVE THE SAME ARRAY OF ENFORCEMENT TOOLS
AS EPA, EXCEPT THAT IMPRISONMENT IS ONLY REQUIRED FOR STATE RCRA
PROGRAMS. STATE PROGRAMS MAY NOT IMPOSE A GREATER BURDEN OF PROOF FOR
ESTABLISHING VIOLATIONS THAN IS REQUIRED OF EPA UNDER THE APPROPRIATE
ACTS. A STATE COULD NOT, FOR EXAMPLE, REQUIRE A SHOWING "BEYOND A
REASONABLE DOUBT" TO ESTABLISH A CIVIL VIOLATION. IF A GREATER BURDEN
OF PROOF WERE ALLOWED, ENFORCEMENT ACTIONS WOULD BE LESS OFTEN
SUCCESSFUL AND STATE PROGRAMS, THEREFORE, LESS EFFECTIVE.
THE PENALTY POLICY PROVISION IN THE PROPOSAL (SECTION 123.10
(C)) HAS BEEN RETAINED UNCHANGED DESPITE NUMEROUS OBJECTIONS THAT
IT NOT BE APPLIED TO STATES. EPA BELIEVES THAT IT IS ENTIRELY
REASONABLE TO EXPECT STATES TO ASSESS PENALTIES WHICH ARE
"APPROPRIATE TO THE VIOLATION". THE ADDITIONAL CRITERIA FOR
ASSESSING PENALTIES APPLY ONLY TO "DEADLINE" VIOLATIONS AND ARE
INHERENTLY FLEXIBLE SO AS TO PROVIDE STATES WITH A WIDE MARGIN
OF DISCRETION IN THEIR APPLICATION.
SOME COMMENTERS ARGUED THAT THE PENALTY POLICY COULD NOT BE APPLIED
TO STATES ADMINISTERING RCRA PROGRAMS BECAUSE UNDER SECTION 3008(C) OF
RCRA THE ADMINISTRATOR MAY ONLY CONSIDER THE SERIOUSNESS OF THE
VIOLATION AND GOOD FAITH EFFORTS TO COMPLY WITH APPLICABLE REQUIREMENTS
IN ASSESSING A PENALTY. THE AGENCY BELIEVES THAT THE FACTORS CONTAINED
IN SECTION 123.9(C) FIT WITHIN THESE BROAD STATUTORY STANDARDS.
MOREOVER, EPA INTERPRETS SECTION 3008(C) OF RCRA TO ALLOW ADOPTION OF A
PENALTY POLICY BY STATES WHICH IS NOT STRICTLY WITHIN THE STANDARDS OF
SECTION 3008(C), SINCE THE LISTING IN SECTION 3008(C) IS NOT EXCLUSIVE.
IN ADDITION, SECTION 3008 COVERS ONLY FEDERAL ENFORCEMENT AND IS NOT
DIRECTLY APPLICABLE TO THE STATES.
SECTION 123.9(D) -- THIS SECTION ESTABLISHES MINIMUM GUIDELINES TO
ENSURE THAT THE PUBLIC HAS AN ADEQUATE OPPORTUNITY TO PARTICIPATE IN THE
ENFORCEMENT PROCESS ITSELF. THIS REGULATION IS PROMULGATED, IN PART,
PURSUANT TO THE PROVISIONS OF SECTION 101(E) OF THE CWA AND SECTION
7004(B) OF RCRA WHICH REQUIRE EPA, IN COOPERATION WITH STATES, TO
PUBLISH MINIMUM GUIDELINES WHICH PROVIDE FOR SUCH PUBLIC PARTICIPATION.
ADDITIONALLY, THIS REGULATION IS PROMULGATED IN RESPONSE TO THE OPINION
OF THE SEVENTH CIRCUIT IN CITIZENS FOR A BETTER ENVIRONMENT V. EPA (596
F. 2D 270, PETITION FOR REHEARING DENIED, 13 ERC 1095, 7TH CIR. 1979).
IT WAS PROPOSED AS SECTION 123.10(D) ON AUGUST 22, 1979 (44 FR 49275).
THE AUGUST 22, 1979 PROPOSAL REQUIRED ALL STATES WISHING TO RECEIVE
OR MAINTAIN PROGRAMS COVERED BY THE CONSOLIDATED PERMIT PROGRAM TO
PROVIDE CITIZEN INTERVENTION AS OF RIGHT. ADDITIONALLY, EPA SUGGESTED
SEVERAL OTHER MECHANISMS FOR PUBLIC PARTICIPATION. AFTER REVIEWING THE
PUBLIC COMMENTS ON THIS PROPOSAL, THE AGENCY HAS ESTABLISHED
REQUIREMENTS WHICH ENSURE THE BENEFITS OF PUBLIC PARTICIPATION, WHILE
INTRUDING LESS INTO THE STATES' MANAGEMENT OF THEIR JUDICIAL AND
ADMINISTRATIVE SYSTEMS.
MANY COMMENTERS OBJECTED TO THE PROPOSED REQUIREMENT OF INTERVENTION
AS OF RIGHT IN STATE ENFORCEMENT ACTION. VARIOUS REASONS WERE ADVANCED
INCLUDING THAT THE AGENCY LACKS STATUTORY AND CONSTITUTIONAL AUTHORITY
TO IMPOSE SUCH A REQUIREMENT AND THAT UNDER SECTION 101(B) OF CWA STATES
HAVE THE PRIMARY RESPONSIBILITY TO CONTROL POLLUTION. ADDITIONALLY,
MANY STATES POINTED TO THE POSSIBLE DISRUPTION OR LOSS OF EXISTING
PROGRAMS IF STATE LEGISLATURES WERE ASKED TO ENACT STATUTORY CHANGES.
ALTHOUGH THE AGENCY DOES NOT AGREE WITH ALL OF THE ARGUMENTS ADVANCED BY
COMMENTERS, INTERVENTION AS OF RIGHT IS NOT NOW MANDATORY BUT IS ONE OF
TWO OPTIONS TO BE ADOPTED BY STATES.
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FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 093 OF 225
COSTLE DM ADMINISTRATOR
EPA
113592
REGULATIONS
THE FIRST OPTION ALLOWS STATES TO PROVIDE FOR INTERVENTION AS OF
RIGHT BY CITIZENS WHO HAVE AN INTEREST WHICH IS OR MAY BE ADVERSELY
AFFECTED BY A VIOLATION. THIS COVERAGE IS COMPARABLE TO EXISTING RIGHTS
IN FEDERAL COURT. ALTERNATIVELY, STATES MAY PROVIDE ASSURANCE THAT THEY
WILL NOT OPPOSE INTERVENTION BY CITIZENS WHEN SUCH INTERVENTION MAY BE
PERMISSIBLY AUTHORIZED UNDER STATE LAW. STATES EMPLOYING THIS OPTION
ARE ALSO REQUIRED TO ENSURE THAT CITIZEN COMPLAINTS OF POTENTIAL
VIOLATIONS ARE RECEIVED AND RESPONDED TO, AND THAT ANY PROPOSED
SETTLEMENT OF AN ENFORCEMENT ACTION IS PUBLISHED FOR PUBLIC COMMENT.
COMMENTERS ALSO OBJECTED TO THE APPLICATION OF THESE REQUIREMENTS TO
RCRA AND UIC PROGRAMS. MANY POINTED OUT THAT CBE V. EPA, SUPRA, IN
WHICH THE SEVENTH CIRCUIT INVALIDATED THE ADMINISTRATOR'S APPROVAL OF
THE ILLINOIS NPDES PROGRAM, WAS BASED ONLY ON THE REQUIREMENTS OF
SECTION 101(E) OF THE CWA. EPA BELIEVES THAT THE APPLICATION OF THESE
REQUIREMENTS TO PROGRAMS UNDER RCRA AND SDWA, IN ADDITION TO CWA, IS
WARRANTED. SECTION 7004(B) OF RCRA IS VIRTUALLY IDENTICAL TO SECTION
101(E) OF CWA, AND CONTAINS THE SAME OBLIGATION TO PROMULGATE
REGULATIONS DEALING WITH PUBLIC PARTICIPATION. ALTHOUGH SDWA CONTAINS
NO SUCH SPECIFIC REQUIREMENTS, SECTION 1450(A) (1) AUTHORIZES THE
ADMINISTRATOR TO PRESCRIBE REGULATIONS WHICH ARE NECESSARY OR
APPROPRIATE TO CARRY OUT HIS FUNCTIONSUNDER THE ACT. THE AGENCY
BELIEVES THAT THESE MINIMUM PUBLIC PARTICIPATION REQUIREMENTS ARE BOTH
NECESSARY AND APPROPRIATE FOR AN ADEQUATE STATE UIC PROGRAM. THE
REQUIREMENTS OF SECTION 123.9(D), THEREFORE, REMAIN APPLICABLE TO ALL
PROGRAMS COVERED BY SUBPART A OF THESE REGULATIONS.
NUMEROUS COMMENTERS URGED THE AGENCY TO ADOPT ALL THE MECHANISMS FOR
PUBLIC PARTICIPATION SUGGESTED INTE PROPOSAL. SOME STATED THATTHE RIGHT
OF PARTICIPATION IN STATE COURT SHOULD BE EQUIVALENT TO THAT AVAILABLE
IN FEDERAL COURT. ALTHOUGH THESE REGULATIONS REQUIRE THAT STATES
PROVIDE A MEANINGFUL OPPORTUNITY FOR PUBLIC PARTICIPATION IN
ENFORCEMENT, THEY REPRESENT MINIMUM GUIDELINES AND DO ALLOW STATES SOME
FLEXIBILITY IN DEVELOPING THESE PROVISIONS. NOTHING IN THE ACT OR ITS
LEGISLATIVE HISTORY INDICATES THAT CONGRESS INTENDED THAT STATES BE
REQUIRED TO PROVIDE IDENTICAL RIGHTS TO THOSE CONGRESS SPECIFIED FOR
CITIZENS IN FEDERAL COURT.
SOME COMMENTERS OBJECTED TO THE SUGGESTION, ADOPTED AS PART OF THE
SECOND ALTERNATIVE, THAT STATES BE REQUIRED TO PUBLISH PROPOSED
SETTLEMENTS FOR PUBLIC COMMENT. THEY CLAIMED THAT THIS COULD DISRUPT A
PROCESS WHICH REQUIRES THAT SETTLEMENTS BE NEGOTIATED IN PRIVATE AND
ADOPTED QUICKLY. HOWEVER, IT IS JUST SUCH A SITUATION, WITH ITS
POTENTIAL FOR ABUSE, WHICH PUBLIC PARTICIPATION IS DESIGNED TO AVOID.
EXPERIENCE BY THE FEDERAL GOVERNMENT INDICATES THAT NOTICING PROPOSED
SETTLEMENTS FOR PUBLIC COMMENT DOES NOT MAKE IT APPRECIABLY HARDER TO
SETTLE CASES. THUS, NOTICE OF SETTLEMENT MUST BE PUBLISHED ALTHOUGH THE
SETTLEMENT ITSELF NEEDN'T BE PUBLISHED. INTERESTED PERSONS WILL BE
ALLOWED TO VIEW THE SETTLEMENT IF THEY WISH. THIS PROCESS IS SIMILAR TO
THAT NOW EMPLOYED BY THE DEPARTMENT OF JUSTICE (28 CFR SECTION 50.7).
SOME COMMENTERS STATED THAT THE AGENCY SHOULD DEFINE "CITIZEN'. MANY
POINTED TO SECTION 505(D) OF CWA WHICH DEFINES CITIZENS AS PERSONS WHO
HAVE AN INTEREST WHICH IS OR MAY BE ADVERSELY AFFECTED. THE AGENCY HAS
ADOPTED A SIMILAR DEFINITION IN THIS RULE. HOWEVER, IT SHOULD BE NOTED
THAT THE LEGISLATIVE HISTORY OF SECTION 505 INDICATES CONGRESS'
INTENTION TO GIVE CITIZENS THE BROADEST RIGHT OF PARTICIPATION PERMITTED
BY THE REQUIREMENT OF "STANDING" CONTAINED IN THE U.S. CONSTITUTION.
SIMILAR BREADTH WOULD BE REQUIRED OF STATES CHOOSING TO PROVIDE
INTERVENTION AS OF RIGHT.
IT WAS ALSO SUGGESTED THAT THE AGENCY REQUIRE STATES TO PROVIDE THEIR
CITIZENS A RIGHT TO COMPEL STATE OFFICIALS TO PERFORM NON-DISCRETIONARY
DUTIES. EPA DOES NOT BELIEVE THAT SUCH A RIGHT NEED BE SPECIFIED IN
THESE MINIMUM GUIDELINES. WHEN STATES ARE NOT PERFORMING NECESSARY
DUTIES, CITIZENS HAVE THE RIGHT TO PETITION EPA TO WITHDRAW THE STATE'S
AUTHORITY TO ADMINISTER THE PROGRAM.
SOME COMMENTERS OBJECTED TO THE LENGTH OF TIME WHICH STATES ARE GIVEN
TO COMPLY WITH THESE REQUIREMENTS. HOWEVER, THIS PERIOD IS THE SAME
GIVEN FOR COMPLIANCE WITH ALL NEW REQUIREMENTS CONTAINED IN THESE
CONSOLIDATED PERMIT REGULATIONS.
SOME COMMENTERS ASSERTED THAT EPA HAS NOT DEVELOPED THESE REGULATIONS
"IN COOPERATION WITH THE STATES" AS REQUIRED BY RCRA AND SDWA. DUE TO
THE TIME CONSTRAINTS IMPOSED BY THE COURT IN CBE V EPA, SUPRA, THE
PROPOSAL WAS DEVELOPED BY EPA. HOWEVER, STATES WERE FULLY INFORMED AND
THEIR VIEWS ON THE PROPOSAL WERE ACTIVELY SOUGHT. COMMENTS WERE
RECEIVED FROM AGENCIES IN OVER 30 STATES. THESE COMMENTS WERE CAREFULLY
AND FULLY CONSIDERED IN DEVELOPING THIS REGULATION.
THIS SECTION WAS PROPOSED AS SECTION 123.16. PARAGRAPH (A) REQUIRES
APPROVED STATES TO SHARE INFORMATION WITH EPA. MANY STATES INDICATED
THAT UNDER STATE LAW THEY MAY NOT BE ABLE TO MAKE CONFIDENTIAL
INFORMATION AVAILABLE TO EPA UPON REQUREST. HOWEVER, SINCE EPA CANNOT
EXERCISE ITS STATUTORY OVERSIGHT AND ENFORCEMENT RESPONSIBILITIES
WITHOUT ACCESS TO ALL THE INFORMATION IT NEEDS, INCLUDING CONFIDENTIAL
INFORMATION, THE PARAGRAPH HAS NOT BEEN CHANGED.
A COMMENTER STATED THAT IF EPA RECEIVES CONFIDENTIAL INFORMATION FROM
A STATE, THE AGENCY SHOULD PRESERVE THE CONFIDENTIALITY OF THE
INFORMATION. WHEN THE AGENCY RECEIVES INFORMATION FROM A STATE WHICH IS
CLAIMED AS CONFIDENTIAL BY THE SUBMITTER EPA WILL TREAT THIS INFORMATION
IN ACCORDANCE WITH ITS BUSINESS CONFIDENTIALITY REGULATIONS AT 40 CFR
PART 2. THESE REGULATIONS TREAT ALL INFORMATION CLAIMED CONFIDENTIAL BY
THE SUBMITTER AS CONFIDENTIAL UNTIL AN EXPLICIT DETERMINATION IS MADE
THAT IT IS NOT ENTITLED TO CONFIDENTIAL TREATMENT. A SUBMITTER GETS
PRIOR NOTICE OF THIS DETERMINATION UNDER 40 CFR SECTION 2.205.
IF A STATE OPERATES A BROADER PROGRAM THAN IS REQUIRED BY FEDERAL
LAW, THIS INFORMATION SHARING REQUIREMENT APPLIES ONLY TO THE FEDERALLY
REQUIRED PORTION.
UNDER SECTION 123.10(B), EPA WILL PROVIDE STATES WITH INFORMATION
FROM ITS FILES WHEN THE STATE REQUIRES THE INFORMATION TO ADMINISTER A
FEDERAL PROGRAM. IF THE INFORMATION HAS BEEN CLAIMED CONFIDENTIAL BY
ITS SUBMITTER, EPA WILL DISCLOSE THE INFORMATION TO A STATE IN
ACCORDANCE WITH THE PROCEDURS OF 40 CFR PART 2. IN PARTICULAR, 40 CFR
SECTION 2.301(H)(3), WHICH IS INCORPORATED BY REFERENCE IN SECTION
2.302(H)(3) (NPDES/404 PERMITS), SECTION 2.304(H)(3) (UIC PERMITS), AND
SECTION 2.305(H)(3) (RCRA PERMITS), PROVIDES THAT EPA WILL DISCLOSE
INFORMATION CLAIMED CONFIDENTIAL TO A STATE IF THE STATE HAS THE
AUTHORITY TO COMPEL THAT INFORMATION OR, IF IT DOES NOT HAVE SUCH
AUTHORITY, IF EPA DETERMINES THAT THE STATE WILL PROVIDE ADEQUATE
PROTECTION TO THE INTERESTS OF THE AFFECTED BUSINESS.
ONE COMMENTER STATED THAT A SUBMITTER SHOULD GET NOTICE BEFORE
CONFIDENTIAL INFORMATION IT SUBMITTED TO EPA IS DISCLOSED TO A STATE.
UNDER THE PART 2 REGULATIONS, EPA WILL GIVE NOTICE TO THE SUBMITTER
BEFORE DISCLOSURE TO THE STATE IF THE STATE AGENCY DOES NOT HAVE THE
AUTHORITY TO DIRECTLY COMPEL SUBMISSION OF THE INFORMATION. IF THE
STATE DOES HAVE THE AUTHORITY TO COMPEL SUBMISSION OF THE INFORMATION,
NOTICE IS NOT REQUIRED. EPA'S DISCLOSURE OF INFORMATION TO AN APPROVED
STATE UNDER SECTION 123.10(B) IS ESSENTIALLY THE SAME AS DISCLOSURE TO
EPA EMPLOYEES OR OTHER FEDERAL AGENCIES WHO PERFORM A FUNCTION ON BEHALF
OF EPA. NOTICE IS NOT REQUIRED PRIOR TO DISCLOSURE IN EITHER OF
SECTIONS 2.209(C)(3) AND (E).
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FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 094 OF 225
COSTLE DM ADMINISTRATOR
EPA
113593
REGULATIONS
THIS PROPOSED SECTION HAS BEEN DROPPED BECAUSE IT WAS DUPLICATIVE OF
OTHER PROVISIONS IN THIS PART. THE REQUIREMENT THAT STATES WITH INTERIM
AUTHORIZATION UNDER RCRA, AND THOSE LISTED AS NEEDING A UIC PROGRAM
SUBMIT PROGRESS REPORTS IS FOUND IN SUBPARTS F AND C, RESPECTIVELY.
THIS SECTION WAS PROPOSED AS SECTION 123.13. THE PROCEDURES FOR
REVISING STATE PROGRAMS ARE DESIGNED TO BE FLEXIBLE ENOUGH TO COVER BOTH
MINOR AND MAJOR MODIFICATIONS. THE AGENCY WILL ISSUE PUBLIC NOTICE AND
PROVIDE OPPORTUNITY FOR PUBLIC COMMENT ON SUBSTANTIAL PROPOSED PROGRAM
MODIFICATIONS, AND WILL INDICATE ITS APPROVAL BY NOTICE IN THE FEDERAL
REGISTER. IN MOST INSTANCES OFMINOR MODIFICATIONS, EPA WILL NOT ISSUE
PUBLIC NOTICE AND WILL INDICATE ITS APPROVAL BY LETTER.
ONE COMMENTER REQUESTED THAT THERE BE NO FORMAL EPA REVIEW OF NOMINAL
CHANGES IN THE STRUCTURE AND RESPONSIBILTIES OF STATE AGENCIES
ADMINISTERING AN APPROVED PROGRAM. IT WAS NOT THE INTENT OF THE
PROPOSAL NOR IS IT OF THESE FINAL REGULATIONS TO REQUIRE EPA REVIEW IN
SUCH CASES. ONLY WHEN THE CONTROLLING FEDERAL OR STATE STATUTORY OR
REGULATORY AUTHORITY IS MODIFIED OR SUPPLEMENTED, OR WHEN THE STATE
PROPOSES TO TRANSFER ALL ORPART OF A PROGRAM FROM AN APPROVED STATE
AGENCY TO ANOTHER AGENCY MAY EPA APPROVAL BE NECESSARY. CHANGES SOLELY
IN THE INTERNAL STRUCTURE OF AN APPROVED STATE AGENCY, WITH NO CHANGES
IN THE OVERALL AUTHORITY OF THE AGENCY, DO NOT REQUIRE EPA APPROVAL.
A NEW PROVISION (SECTION 123.13(G)) HAS BEEN ADDED TO REINSTATE THE
TIME PERIODS FOR COMPLIANCE WITH REVISED NPDES REQUIREMENTS BY APPROVED
STATE NPDES PROGRAMS. THOSE COMPLIANCE DEADLINES HAD BEEN SUSPENDED ON
MARCH 13, 1980 (45 FR 16182) TO ALLOW NPDES STATES TO AWAIT PROMULGATION
OF THESE CONSOLIDATED REGULATIONS BEFORE MODIFYINGTHEIR PROGRAMS.
SECTION 123.13(G) ALSO REQUIRES NPDES STATES TO IMPLEMENT THE NEW
NPDES APPLICATION REQUIREMENTS FOR EXISTING DISCHARGERS OTHER THAN
POTW'S CONTAINED IN SECTIONS 122.4(D) AND 122.53(D) AND (E), FOR ALL
DISCHARGERS WHOSE PERMITS EXPIRE AFTER NOVEMBER 30, 1980 OR WHOSE
PERMITS EXPIRE BEFORE NOVEMBER 30, 1980 BUT WHO HAVE NOT REAPPLIED PRIOR
TO APRIL 30, 1980. THIS IS NECESSARY TO ASSURE THAT THE IMMINENT ROUND
OF BAT PERMIT ISSUANCES ARE WRITTEN WITH ADEQUATE KNOWLEDGE OF THE TOXIC
POLLUTANTS BEING DISCHARGED. (SEE THE PREAMBLE TO THE CONSOLIDATED
APPLICATION FORM, PUBLISHED ELSEWHERE IN TODAY'S FEDERAL REGISTER, AND
THE PREAMBLE TO SECTIONS 122.53 AND 122.62 FOR DETAILED DISCUSSION OF
THE NEW APPLICATION, ITS USE IN THE NPDES PROGRAM, AND THE
CONSIDERATIONS INVOLVED IN PHASING IN THE USE OF THE NEW APPLICATION.)
WHILE THESE APPLICATION REQUIREMENTS WILL HAVE TO BE IMPLEMENTED MORE
RAPIDLY BY STATES THAN OTHER NEW NPDES REQUIREMENTS, EPA ANTICIPATES
THAT STATES SHOULD HAVE NO DIFFICULTY IMPLEMENTING THEM IN A TIMELY
MANNER. EPA IS NOT REQUIRING THAT STATES IMMEDIATELY DEVELOP NEW FORMS
TO SECURE THE INFORMATION REQUIRED UNDER SECTIONS 122.4(D) AND 122.53(D)
AND (E). UNTIL SUCH TIME AS THEY DEVELOP NEW FORMS THEY MAY EITHER
RECEIVE THE REQUIRED INFORMATION WITHOUT THE USE OF ANY FORM, OR THEY
MAY USE EPA'S NEW CONSOLIDATED FORMS 1, 2B AND 2C (SEE SEPARATE
PUBLICATION IN TODAY'S FEDERAL REGISTER OF EPA CONSOLIDATED APPLICATION
FORMS). EPA WILL PROVIDE ADEQUATE SUPPLIES OF THESE FORMS TO STATES
WISHING TO USE THEM. STATES WHICH DEVELOP NEW APPLICATION FORMS
CONSISTENT WITH SECTIONS 122.4(D) AND 122.53(D) AND (E) WILL RECEIVE
EXPEDITED APPROVAL. EPA WILL CONSIDER THESE NEW FORMS TO BE
NONSUBSTANTIAL PROGRAM MODIFICATIONS UNDER SECTION 123.13(B) (2).
THIS SECTION WAS PROPOSED AS SECTION 123.14. ONE COMMENTER THOUGHT
THAT PROGRAM WITHDRAWAL SHOULD BE MANDATORY FOR ANY VIOLATION BY A STATE
OF THE REQUIREMENTS OF THIS PART. SUCH A REQUIREMENT WOULD BE DRACONIAN
AND HAS BEEN REJECTED BY THE AGENCY AND THE COURTS. SEE SAVE THE BAY V.
ADMINISTRATOR, 556 F.2D 1282 (5TH CIR. 1977).
THIS SECTION WAS PROPOSED AS SECTION 123.15. A COMMENTER SUGGESTED
THAT EPA GIVE A WRITTEN RESPONSE TO ANY PETITION FOR WITHDRAWAL OF A
STATE PROGRAM. THIS SUGGESTION HAS BEEN ADOPTED. ALSO, LANGUAGE HAS
BEEN ADDED TO CLARIFY THAT ACTIONS TAKEN BY A STATE PRIOR TO WITHDRAWAL
ARE VALID AND ARE NOT AFFECTED BY WITHDRAWAL. THUS, A PERMIT ISSUED BY
A STATE PRIOR TO PROGRAM WITHDRAWAL WOULD REMAIN VALID AFTER WITHDRAWAL.
THIS PROVISION APPEARS AT SECTION 123.15(C).
RCRA IS UNIQUE AMONG THE STATUTES COVERED BY THESE CONSOLIDATED
REGULATIONS IN THAT IT PROVIDES FOR TWO DIFFERENT TYPES OF EPA APPROVAL
OF STATE PROGRAMS -- "INTERIM AUTHORIZATION," WHICH MAY EXTEND FOR ONLY
24 MONTHS AFTER THE FULL FEDERAL PROGRAM HAS BEEN ESTABLISHED - AND
"FINAL AUTHORIZATION," WHICHIS THE SAME TYPE OF PERMANENT APPROVAL
AUTHORIZED BY THE OTHER STATUTES IMPLEMENTED BY THIS PART.
EPA ORIGINALLY PROPOSED GUIDELINES FOR BOTH INTERIM AND FINAL
AUTHORIZATION OF STATE HAZARDOUS WASTE PROGRAMS UNDER SECTION 3006 OF
RCRA ON FEBRUARY 1, 1978 (43 FR 4365). ON JUNE 14, 1979, EPA REPROPOSED
THE GUIDELINES AS PART OF THESE CONSOLIDATED PERMIT REGULATIONS.
BECAUSE OF THE PUBLIC INTEREST IN THE FEDERAL HAZARDOUS WASTE REGULATORY
PROGRAM AND BECAUSE OF THE PARTICULAR NEED FOR STATES TO KNOW EARLY IN
1980 WHAT EPA WOULD REQUIRE FOR INTERIM AUTHORIZATION, THE AGENCY, ON
JANUARY 29, 1980, PUBLISHED IN THE FEDERAL REGISTER (45 FR 6752) ADVANCE
NOTICE OF WHAT TODAY'S REGULATIONS IMPOSE AS REQUIREMENTS FOR BOTH
INTERIM AND FINAL AUTHORIZATION OF STATE HAZARDOUS WASTE PROGRAMS. THE
AGENCY DID NOT ACCEPT COMMENTS ON THIS ADVANCE NOTICE, NOR DID IT
RESPOND IN THE ADVANCE NOTICE TO COMMENTS MADE ON THE JUNE 14, 1979
PROPOSAL.
IN THE JUNE 14, 1979 PROPOSAL, EPA RESPONDED TO COMMENTS RECEIVED
CONCERNING THE FEBRUARY 1, 1978 PROPOSAL AND DISCUSSED CERTAIN PROGRAM
DECISIONS. THESE WILL NOT BE REITERATED FULLY HERE. HOWEVER, EPA
STRONGLY SOLICITED COMMENTS ON MANY ASPECTS OF THE PROPOSAL PERTAINING
TO INTERIM AUTHORIZATION. COMMENTS ON THESE ASPECTS AND THE BASIS FOR
THIS FINAL REGULATION FOR INTERIM AUTHORIZATION AS IT APPEARS TODAY ARE
ADDRESSED BELOW.
IN THE JUNE 14, 1979 PROPOSAL OF PART 123, REQUIREMENTS FOR BOTH
INTERIM AUTHORIZATION AND FINAL AUTHORIZATION WERE CONTAINED IN SUBPARTS
A AND B. THIS CAUSED CONFUSION AMONG MANY COMMENTERS AS TO WHICH
REQUIREMENTS PERTAINED TO WHICH TYPE OF AUTHORIZATION. IN ORDER TO MAKE
THE FINAL REGULATIONS EASIER TO READ AND WORK WITH, EPA HAS NOW
SEPARATED THE RCRA PROVISIONS IN THIS PART INTO TWO SUBPARTS -- ONE FOR
FINAL AUTHORIZATION AND ONE FOR INTERIM AUTHORIZATION. EPA BELIEVES
THAT THE REQUIREMENTS FOR INTERIM AUTHORIZATION ARE MOST COMPREHENSIBLE
WHEN SET FORTH AS A DISCREET, AUTONOMOUS SUBPART OF PART 123.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 095 OF 225
COSTLE DM ADMINISTRATOR
EPA
113594
REGULATIONS
THUS, NEW SUBPART F INCLUDES ALL OF THE REQUIREMENTS FOR INTERIM
AUTHORIZATION, HAVING EXPLICITLY ADOPTED THE APPLICABLE PORTIONS OF
SUBPART A. ACCORDINGLY, SUBPART F CAN BE READ AS A UNIT BY THOSE
INTERESTED IN INTERIM AUTHORIZATION ONLY. THIS SYSTEM WILL ALSO ALLOW
SUBPART F TO BE DROPPED FROM THE CODE OF FEDERAL REGULATIONS WHEN THE
INTERIM AUTHORIZATION PERIOD IS OVER. SUBPART B NOW INCLUDES THE
REQUIREMENTS FOR FINAL AUTHORIZATION ADDITIONAL TO THOSE CONTAINED IN
SUBPART A. ALTHOUGH THIS SEPARATION CAUSES SOME DUPLICATION OF
REQUIREMENTS WHICH PERTAIN TO BOTHINTERIM AND FINAL AUTHORIZATION, EPA
BELIEVES THIS REORGANIZATION WILL REMEDY THE UNCLEARNESS OF THE PROPOSAL
CONCERNING REQUIREMENTS FOR INTERIM AUTHORIZATION.
BECAUSE FINAL AND INTERIM AUTHORIZATION ARE SO CLOSELY RELATED, THEY
ARE DISCUSSED TOGETHER IN THIS SECTION OF THE PREAMBLE. THE DISCUSSION
FIRST COVERS TWO GENERAL ISSUES RELEVANT TO BOTH PROGRAMS. INTERIM
AUTHORIZATION IS DISCUSSED NEXT, SINCE IT COMES FIRST IN TIME AND IS
EXPECTED TO PROVIDE THE FOUNDATION FOR FINAL AUTHORIZATION. FINALLY,
SUBPART B CONCERNING FINAL AUTHORIZATION IS DISCUSSED.
EQUIVALENCE AND CONSISTENCY. ONE OF THE MOST FREQUENTLY DISCUSSED
ISSUES IN THE COMMENTS ONDE RCRA PORTIONS OF THE PROPOSED PART 123
REGULATIONS CONCERNED THE EXTENT TO WHICH STATE PROGRAMS SHOULD BE
REQUIRED TO BE SUBSTANTIVE AND PROCEDURAL DUPLICATES OF THE FEDERAL
PROGRAM BEFORE THEY COULD BE APPROVED FOR EITHER INTERIM OR FINAL
AUTHORIZATION. MANY INDUSTRIES ARGUED FOR REQUIRING NEARLY IDENTICAL
STATE PROGRAMS, OUT OF AN UNDERSTANDABLE AND LEGITIMATE CONCERN ABOUT
THE BURDEN OF ADHERING TO MANY DISSIMILAR STATE PROGRAMS, WHILE MANY
STATES ARGUED FOR A MORE LENIENT TEST, FOR EQUALLY UNDERSTANDABLE
REASONS. THE BASIC LEGAL FRAMEWODK OF THE PROBLEM IS LAID OUT HERE;
EPA'S DETAILED RESOLUTION OF THE ISSUE IS EXPLAINED LATER IN THE
PROGRAM-SPECIFIC DISCUSSION.
RCRA EXPRESSES A CONCERN FOR NATIONAL CONSISTENCY OF STATE PROGRAMS
DURING FINAL AUTHORIZATION, BUT BACKS-OFF FROM THAT GOAL OF CONSISTENCY
DURING INTERIM AUTHORIZATION. THE STATUTE REQUIRES STATES WITH FINAL
AUTHORIZATION TO HAVE PROGRAMS BOTH "EQUIVALENT TO" AND "CONSISTENT
WITH" THE FULL FEDERAL PROGRAM. HOWEVER, DURING THE PERIOD OF INTERIM
AUTHORIZATION STATES MUST HAVE PROGRAMS THAT ARE ONLY "SUBSTANTIALLY
EQUIVALENT" TO THE FEDERAL PROGRAM.
ALTHOUGH THESE PROVISIONS TAKEN TOGETHER EVIDENCE A CLEAR CONCERN TO
AVOID DUPLICATIVE AND OVERLAPPING REGULATIONS AND TO MAKE STATE
HAZARDOUS WASTE CONTROL PROGRAMS RELATIVELY EQUAL TO EACHOTHER AND TO
THE FEDERAL PROGRAM, PARTICULARLY DURING FINAL AUTHORIZATION, THEY MUST
BE CONSIDERED IN LIGHT OF SECTION 3009 OF RCRA. SECTION 3009 OF RCRA
STATES THAT AFTER THE FEDERAL RCRA PROGRAM BECOMES EFFECTIVE, NO STATE
MAY ADMINISTER A PROGRAM LESS STRINGENT THAT THE FEDERAL PROGRAM. THE
STATUTORY LANGUAGE DOES NOT DIRECTLY ADDRESS THE QUESTION WHETHER MORE
STRINGENT STATE REQUIREMENTS ARE PREEMPTED, THOUGH EPA BELIEVES IN
CERTAIN CIRCUMSTANCES, DISCUSSED LATER IN THE PREAMBLE, THEY WELL MIGHT
BE. HOWEVER, THE SECTION TAKEN AS A WHOLE DOES SUGGEST BY NEGATIVE
IMPLICATION THAT RCRA WAS NOT INTENDED TO HAVE SWEEPING PREEMPTIVE
EFFECT. THUS STATES MAY IMPOSE REQUIREMENTS UNDER THEIR OWN LAWS WHICH
ARE MORE STRINGENT THAN THE FEDERAL REQUIREMENTS, BUT SECTION 3006
FORBIDS EPA FROM APPROVING THESE REQUIREMENTS AS PART OF A STATE FINAL
AUTHORIZATION PROGRAM IF THEY ARE "INCONSISTENT" WITH THE FEDERAL
PROGRAM.
ACCORDINGLY, ESTABLISHING VERY TIGHT STANDARDS FOR EPA APPROVAL OF
STATE PROGRAMS WOULD NOT NECESSARILY ADVANCE SOME OF THE BASIC GOALS OF
THE STATUTE -- TO ESTABLISH FEDERAL MINIMUM STANDARDS, BUT NOT ABRUPTY
HALT THE DEVELOPMENT OF STATE PROGRAMS, AND TO REDUCE THE EXISTENCE OF
OVERLAPPING OR DUPLICATIVE STATE REGULATORY PROGRAMS. INDEED, SETTING A
VERY HIGH THRESHOLD MIGHT PRODUCE THE REVERSE EFFECT BY REMOVING AN
INCENTIVE FOR STATES TO TAKE MODERATE STEPS TO MAKE THEIR PROGRAM MORE
SIMILAR TO THE FEDERAL PROGRAM, BUT NOT IDENTICAL TO IT.
THOUGH EPA HAS TIGHTENED A NUMBER OF THE REQUIREMENTS FOR APPROVAL OF
STATE PROGRAMS, IT HAS NOT ACCEPTED THE COMMENTS CALLING FOR THE
PROGRAMS TO BE IDENTICAL. INSTEAD, AS DISCUSSED BELOW, IT HAS ADHERED
TO A MORE FLEXIBLE APPROACH, PARTICULARLY WHERE INTERIM AUTHORIZATION IS
CONCERNED. FINAL STATE RCRA PROGRAMS THOUGH MAY NOT BE LESS STRINGENT
THAN THE FEDERAL PROGRAM.
REVIEW OF STATE PERMITS. SECTION 3008(A)(3) OF RCRA AUTHORIZES THE
ADMINISTRATOR, AFTER GIVING NOTICE, TO REVOKE ANY RCRA PERMIT WHOSE
HOLDER IS IN VIOLATION OF ANY OF THE REQUIREMENTS OF SUBTITLE C, OR
STATE REQUIREMENTS ESTABLISHED UNDER THAT SUBTITLE, AND TO ASSESS A
CIVIL PENALTY AGAINST THAT PERSON. THE STATUTE EXPLICITLY ALLOWS THIS
WHETHER THE PERMIT CONCERNED WAS ISSUED BY EPA OR BY A STATE WITH AN
APPROVED PROGRAM.
THE PROPOSED REGULATIONS DID NOT SPECIFY ANY RESTRICTIONS ON THIS
AUTHORITY, AND THUS BY IMPLICATION ALLOWED IT TO BE USED AT ANY TIME.
(THIS IMPLICATION WAS REINFORCED BY THE VERY BROAD GROUNDS FOR
MODIFICATION OF RCRA PERMITS SET FORTH IN PROPOSED SECTION 122.9.)
IN THESE FINAL REGULATIONS, EPA HAS MADE MORE EXPLICIT AND NARROWED
THE GROUNDS ON WHICH IT WILL MOVE TO REVOKE STATE ISSUED PERMITS OR
ENFORCE AGAINST THEIR HOLDERS. FIRST, EPA MAY TAKE SUCH ACTIONS AT ANY
TIME, AFTER GIVING NOTICE TO THE STATE, IF THE HOLDER OF A STATE-ISSUED
PERMIT HAS NOT COMPLIED WITH ITS TERMS. EPA INTENDS THAT STATES SHOULD
HAVE PRIMARY ENFORCEMENT RESPONSIBILITY, BUT THE AGENCY RETAINS
INDEPENDENT ENFORCEMENT AUTHORITY IN AN APPROVED STATE AND WILL USE IT
TO THE EXTENT A STATE FAILS TO TAKE NECESSARY ENFORCEMENT ACTION.
BEYOND THAT, THE REGULATIONS STATE THAT EPA WILL ONLY REVOKE
STATE-ISSUED PERMITS OR ENFORCE AGAINST THEIR HOLDERS TO THE EXTENT
PERMITTEES DO NOT COMPLY WITH CONDITIONS INCLUDED IN COMMENTS MADE BY
EPA DURING THE PERIOD FOR REVIEW OF STATE PERMITS REQUIRED BY SECTIONS
123.6, 123.38, AND 123.134 AND WHICH EPA STATED WERE NECESSARY TO
IMPLEMENT APPROVED PROGRAM REQUIREMENTS. EPA COMMENTS ON THE PROPOSED
STATE PERMIT WOULD ONLY ADDRESS WHETHER THE PERMIT PROPERLY IMPLEMENTED
THE APPROVED STATE REQUIREMENTS, NOT WHETHER IT IMPLEMENTED THE FEDERAL
REQUIREMENTS THAT WERE NOT EFFECTIVE IN THE STATE. EPA DOES NOT INTEND
TO TAKE ENFORCEMENT ACTION AGAINST A STATE PERMIT HOLDER WHO IS IN
COMPLIANCE WITH A CONDITION COMMENTED UPON BY EPA DURING ITS REVIEW
PERIOD AND RECOMMENDED FOR INCLUSION IN THE PERMIT, EVEN THOUGH THE
CONDITION IS NOT INCLUDED IN THE PERMIT. THIS IS CLEARLY NOT A RESULT
EPA INTENDED IN ESTABLISHING THESE PERMIT REVIEW PROCEDURES. PERMIT
APPLICANTS WILL BE ON NOTICE AS TO COMMENTS MADE BY EPA DURING THE
REVIEW PERIOD AS THESE COMMENTS WILL BE SENT TO THE PERMIT APPLICANT
BEFORE THE PERMIT IS ISSUED.
THIS APPROACH MEANS THAT IN CASES WHERE EPA HAS NO COMMENTS ON A
STATE PERMIT OR WHERE THE COMMENTS ARE SUCCESSFULLY ACCOMMODATED,
COMPLIANCE WITH THE STATE PERMIT WILL BE DEEMED COMPLIANCE WITH THE
REQUIREMENTS OF THE STATE PROGRAM AND SUBTITLE C, FOR FEDERAL
ENFORCEMENT PURPOSES, APART FROM AN "IMMINENT HAZARD" ACTION UNDER
SECTION 7003. HOWEVER, IT ALSO RESERVES TO EPA THE AUTHORITY TO PREVENT
A STATE-ISSUED PERMIT FROM SHIELDING OWNERS AND OPERATORS FROM FEDERAL
ENFORCEMENT TO THE EXTENT THAT EPA HAS TIMELY EXPRESSED ITS VIEWS THAT
THE PERMIT IN QUESTION IS NOT ADEQUATE TO CARRY OUT THE PURPOSES OF
RCRA.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 096 OF 225
COSTLE DM ADMINISTRATOR
EPA
113595
REGULATIONS
THIS WILL ALLOW EPA A MEASURE OF CONTROL OVER STATE RCRA PROGRAMS
SHORT OF THE DRASTIC AND OFTEN IMPRACTICAL STEP OF WITHDRAWING PROGRAM
APPROVAL. THE LANGUAGE OF SECTION 3008 (A)(3) INDICATES THAT CONGRESS
HAD SUCH AN OVERSIGHT ROLE IN MIND WHEN STATE-ISSUED RCRA PERMITS WERE
CONCERNED.
EPA WILL FOLLOW THIS APPROACH BOTH IN STATES WITH FINAL AUTHORIZATION
AND IN STATES WHICH ARE ISSUING PERMITS UNDER PHASE II OF INTERIM
AUTHORIZATION. DURING PHASE I OF INTERIM AUTHORIZATION, "INTERIM STATUS
STANDARDS" OR THEIR STATE EQUIVALENTS APPLY TO FACILITIES WHICH HAVE NOT
RECEIVED A FULL RCRA PERMIT. SOME STATES WITH PHASE I INTERIM
AUTHORIZATION MAY ELECT TO ENFORCE THEIR VERSION OF THE INTERIM STATUS
STANDARDS BY GRANTING PERMITS CONTAINING THOSE CONDITIONS. THIS
APPROACH IS PERFECTLY ACCEPTABLE. HOWEVER, A PERMIT CONTAINING THOSE
STANDARDS HAS NO STATUS AS A RCRA PERMIT AND DOES NOT RELIEVE THE
FACILITY HOLDING IT OF THE OBLIGATION TO APPLY FOR AND RECEIVE A FULL
RCRA PERMIT WHEN THE DIRECTOR REQUESTS.
AS NOTED ABOVE, RCRA IS UNIQUE AMONG THE PROGRAMS COVERED BY THESE
CONSOLIDATED REGULATIONS IN PROVIDING NOT JUST FOR FULL AND PERMANENT
AUTHORIZATION TO STATES TO ADMINISTER A PERMIT PROGRAM INSTEAD OF EPA,
BUT ALSO FOR A PERLIMINARY TRANSITIONAL STAGE CALLED "INTERIM
AUTHORIZATION." SECTION 3006(C) OF RCRA PROVIDES THAT
ANY STATE WHICH HAS IN EXISTENCE A HAZARDOUS WASTE PROGRAM PURSUANT
TO STATE LAW BEFORE THE DATE 90 DAYS AFTER THE DATE OF PROMULGATION OF
REGULATIONS UNDER SECTIONS 3002, 3003, AND 3004, AND 3005, MAY SUBMIT TO
THE ADMINISTRATOR EVIDENCE OF SUCH EXISTING PROGRAM AND MAY REQUEST A
TEMPORARY AUTHORIZATION TO CARRY OUT SUCH PROGRAM UNDER THIS SUBTITLE.
THE ADMINISTRATOR SHALL, IF THE EVIDENCE SUBMITTED SHOWS THE EXISTING
STATE PROGRAM TO BE SUBSTANTIALLY EQUIVALENT TO THE FEDERAL PROGRAM
UNDER THIS SUBTITLE, GRANT AN INTERIM AUTHORIZATION TO THE STATE TO
CARRY OUT SUCH PROGRAM IN LIEU OF THE FEDERAL PROGRAM PURSUANT TO THIS
SUBTITLE FOR A 24-MONTH PERIOD BEGINNING ON THE DATE 6 MONTHS AFTER THE
DATE OF PROMULGATION OF REGULATIONS UNDER SECTIONS 3002 THROUGH 3005.
UNLIKE FINAL AUTHORIZATION PROGRAMS, WHICH MUST BE "EQUIVALENT" TO
THE FEDERAL PROGRAM, "CONSISTENT" WITH THE FEDERAL PROGRAM AND PROGRAMS
IN OTHER STATES, AND PROVIDE ADEQUATE ENFORCEMENT ASSURANCES, THE STATE
INTERIM AUTHORIZATION PROGRAM MUST ONLY BE "SUBSTANTIALLY EQUIVALENT" TO
THE FEDERAL PROGRAM. THE LEGISLATIVE HISTORY EMPHASIZES CONGRESS'
INTENT THAT INTERIM AUTHORIZATION BE GRANTED IN A RELATIVELY LIBERAL
MANNER SO AS NOT TO DISRUPT ON-GOING STATE EFFORTS AND TO ENCOURAGE
STATES TO CONTINUE THEIR EFFORTS SO THAT THEY WILL BE READY TO TAKE OVER
RESPONSIBILITY FOR THE FULL PROGRAM WHEN INTERIM AUTHORIZATION IS OVER.
THE TIMING AND CONDITIONS FOR INTERIM AUTHORIZATION, AND THE
RELATIONSHIP BETWEEN VARIOUS STATE PROGRAMS AND BETWEEN THE FEDERAL
PROGRAM AND STATE PROGRAMS UNDER INTERIM AUTHORIZATION, HAVE BEEN AMONG
THE MOST DIFFICULT QUESTIONS TO BE ADDRESSED IN THESE CONSOLIDATED
REGULATIONS.
IN THE PROPOSAL, EPA SPECIFIED A SINGLE STARTING DATE FOR INTERIM
AUTHORIZATION, NAMELY "THE DATE 6 MONTHS AFTER THE PROMULGATION OF
REGULATIONS UNDER SECTION 3001 OF RCRA." THE PROPOSED REQUIREMENTS FOR
OBTAINING INTERIM AUTHORIZATION WERE RELATIVELY LOOSE. A STATE WAS NOT
REQUIRED TO HAVE A PROGRAM FOR LISTING AND DESIGNATING HAZARDOUS WASTES
OR FOR IMPLEMENTING THE MANIFEST SYSTEM INORDER TO OBTAIN INTERIM
AUTHORIZATION. INSTEAD IT WAS ONLY REQUIRED TO CONTROL BY PERMIT EITHER
ON-SITE OR OFF-SITE HAZARDOUS WASTE DISPOSAL FACILITIES AND TO CONDUCT
AN EFFECTIVE ENFORCEMENT PROGRAM.
THE FINAL REGULATIONS SIGNIFICANTLY CHANGE THE APPROACH TAKEN IN THE
PROPOSAL. FIRST, THE INTERIM AUTHORIZATION PROGRAM WILL BE IMPLEMENTED
IN TWO "PHASES" CORRESPONDING TO THE TWO STAGES IN WHICH THE UNDERLYING
FEDERAL PROGRAM WILL ITSELF TAKE EFFECT. THE REASONS FOR AND MECHANICS
OF THIS APPROACH ARE DISCUSSED IMMEDIATELY BELOW. SECOND, THE
REQUIREMENTS FOR APPROVAL OF INTERIM AUTHORIZATION HAVE BEEN TIGHTENED
SIGNIFICANTLY. A MUCH GREATER DEGREE OF SIMILARILY TO THE CORRESPONDING
REQUIREMENTS OF THE FEDERAL PROGRAM WILL NOW BE REQUIRED.
AS THE PREAMBLE TO THE RCRA SECTION 3004 REGULATIONS SET FORTH, EPA
WILL ESTABLISH THE REGULATIONS SETTING UP THE RCRA PROGRAM IN ITS
INITIAL FORM IN TWO STAGES. THE FIRST SET OF REGULATIONS (OR "PHASE
1"), WHICH WILL BECOME EFFECTIVE 6 MONTHS FROM THE DATE OF THEIR
PROMULGATION, WILL ACCOMPLISH THE INITIAL IDENTIFICATION OF
CHARACTERISTICS OF HAZARDOUS WASTE AND LISTING OF HAZARDOUS WASTES (PART
261), ESTABLISH THE STANDARDS APPLICABLE TO GENERATORS AND TRANSPORTERS
OF HAZARDOUS WASTES, INCLUDING ESTABLISHING THE MANIFEST SYSTEM (PARTS
262 AND 263), ERECT "INTERIM STATUS" STANDARDS APPLICABLE TO EXISTING
HWM FACILITIES BEFORE THEY RECEIVE PERMITS (PART 265) AND SET OUT
PERMITTING PROCEDURES (PART 122).
THE SECOND SET OF REGULATIONS (OR "PHASE II"), TO BE PROMULGATED
INTHE FALL OF 1980, WILL COMPLETE THE JOB OF ESTABLISHING THE INITIAL
SET OF STANDARDS THAT GOVERN THE OPERATION OF HWM FACILITIES. FULL
PERMITTING OF THESE FACILITIES WILL BE ABLE TO PROCEED ON THE EFFECTIVE
DATE OF THESE REGULATIONS. THIS TWO-STAGE APPROACH HAS PROVED TO BE THE
ONLY PRACTICAL WAY, GIVEN THE SIZE OF THE REGULATORY TASK INVOLVED, OF
PUTTING THE PROGRAM IN MOTION EXPEDITIOUSLY.
AS FAR AS THE FEDERAL PROGRAM IS CONCERNED, THE ONLY CONCRETE
OPERATIONAL DIFFERENCE THAT WILL FLOW FROM THIS TWO-STATE APPROACH AS
OPPOSED TO ONE IN WHICH THE REGULATIONS WERE ALL PROMULGATED AT ONCE,
WILL BE THAT A PERIOD OF 6 MONTHS WILL BE CREATED DURING WHICH EXISTING
HWM FACILITIES WILL BE SUBJECT TO INTERIM STATUS STANDARDS BUT NO
PERMITS WILL BE ISSUED. HOWEVER, AS THE PREAMBLE TO THE SECTION 3004
REGULATIONS EXPLAINS, THE STATUTE EXPLICITLY FORESEES THAT MANY
FACILITIES WILL NOT BE PERMITTED FOR YEARS AFTER THE PROGRAM STARTS AND
PROVIDES FOR "INTERIM STATUS" FOR THESE FACILTIES. THE TWO-STATE
APPROACH OPERATES WITHIN THAT BASIC UNDERSTANDING.
IT WOULD BE INCONSISTENT AND CONTRARY TO CONGRESSIONAL INTENT TO
ESTABLISH INTERIM AUTHORIZATION IN ONE STAGE ONLY WHEN THE BASIC FEDERAL
PROGRAM IS BEING ESTABLISHED IN TWO STAGES. AS A PRACTICAL MATTER, A
ONE STAGE INTERIM AUTHORIZATION PROGRAM COULD ONLY HAVE BEEN DONE BY
POSTPONING THE BEGINNING OF INTERIM AUTHORIZATION UNTIL AFTER BOTH
STAGES OF THE FEDERAL PROGRAM WERE PROMULGATED. THAT WOULD HAVE MEANT
CREATING A PERIOD OF 6 MONTHS IN WHICH EPA WOULD RUN A PURELY FEDERAL
PROGRAM WITHOUT ANY POSSIBILITY OF A STATE FORMALLY TAKING IT OVER.
THIS WOULD HAVE BEEN CONTRARY TO THE CONGRESSIONAL DESIRE THAT STATES
TAKE FORMAL RESPONSIBILITY FOR THE PROGRAM AS SOON AS POSSIBLE.
FOR THESE REASONS, EPA HAS ELECTED TO ALLOW INTERIM, AUTHORIZATION
FOR THE FIRST PHASE OF THE FEDERAL PROGRAM AS WELL AS FOR THE SECOND.
EPA BELIEVES THIS APPROACH IS LEGAL UNDER THE STATUTE.
SECTION 3006(C) OF RCRA CONSISTS OF TWO SENTENCES EMBODYING SOMEWHAT
DIFFERENT POLICIES. THE SECOND SENTENCE REQUIRES EPA, UPON FINDING THAT
A STATE PROGRAM IS "SUBSTANTIALLY EQUIVALENT" TO THE FEDERAL PROGRAM, TO
GRANT AN INTERIM AUTHORIZATION TO THE STATE TO CARRY OUT SUCH PROGRAM IN
LIEU OF THE FEDERAL PROGRAM FOR A 24-MONTH PERIOD BEGINNING ON THE DATE
6 MONTHS AFTER THE DATE OF PROMULGATION OF REGULATIONS UNDER SECTIONS
3002 THROUGH 3005.
THIS SENTENCE ALLOWS STATES 2 YEARS FROM THE EFFECTIVE DATE OF THE
REGULATIONS ESTABLISHING THE FULL FEDERAL PROGRAM IN ITS INITIAL FORM TO
COME INTO COMPLIANCE WITH THE FEDERAL PROGRAM AND, DURING THAT GRACE
PERIOD, ALLOWS FEDERAL APPROVAL OF STATE PROGRAMS THAT DO NOT YET MEET
THE EQUIVALENCY TEST REQUIRED FOR FINAL AUTHORIZATION.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 097 OF 225
COSTLE DM ADMINISTRATOR
EPA
113596
REGULATIONS
/4A/ THIS ISSUE OF THE FEDERAL REGISTER CONTAINS EPA'S INITIAL LIST
OF WASTES UNDER SECTION 3001 OF RCRA. IN JUNE, EPA EXPECTS TO LIST
ADDITIONAL WASTES, AND THE CAIDIDATES FOR THAT LISTING HAVE ALSO BEEN
PUBLISHED TODAY. EPA ENCOURAGES STATES APPLYING FOR INTERIM
AUTHORIZATION BEFORE THE JUNE PROMULGATION TO INCLUDE THE WASTES SET
FORTH TODAY AS CANDIDATES FOR LISTING IN JUNE IN THEIR PHASE I
SUBMISSIONS. THAT WILL AVOID THE NEED TO SUPPLEMENT THE APPLICATION
LATER AND WILL REDUCE CONFUSION AND PAPERWORK.
THE APPROACH EPA HAS ADOPTED CARRIES OUT THAT POLICY BY LIMITING
INTERIM AUTHORIZATION TO 2 YEARS FROM THE EFFECTIVE DATE OF THE
FULLINITIAL RCRA PROGRAM REGULATIONS, WHICH INCLUDES THE PHASE II
REGULATIONS TO BE PROMULGATED NEXT FALL. IT WOULD HAVE BEEN CONSISTENT
WITH THE LITERAL LANGUAGE OF THIS SECOND SENTENCE TO HAVE LIMITED
INTERIM AUTHORIZATION TO A TWO YEAR PERIOD BEGINNING ON THE EFFECTIVE
DATE OF THE PHASE I REGULATIONS, AND EPA CONSIDERED THAT APPROACH.
HOWEVER, THAT APPROACH WOULD HAVE FAILED ENTIRELY TO CARRY OUT THE
POLICIES IN THE FIRST SENTENCE OF SECTION 3006(C). THAT SENTENCE READS:
ANY STATE WHICH HAS IN EXISTENCE A HAZARDOUS WASTE MANAGEMENT PROGRAM
PURSUANT TO STATE LAW BEFORE THE DATE 90 DAYS AFTER PROMULGATION OF
REGULATIONS UNDER SECTIONS 3002, 3003, 3004, AND 3005 MAY SUBMIT TO THE
ADMINISTRATOR EVIDENCE OF SUCH EXISTING PROGRAM AND MAY REQUEST A
TEMPORARY AUTHORIZATIONTO CARRY OUT SUCH PROGRAM UNDER THIS SUBTITLE.
THIS SENTENCE EXPRESSES AND THE LEGISLATIVE HISTORY UNDERLINES, AN
INTENT THAT STATES BE ABLE TO APPLY FOR INTERIM AUTHORIZATION AND GET IT
PROMPTLY AFTER PROMULGATION OF REGULATIONS SETTING UP A MEANINGFUL
REGULATORY PROGRAM UNDER SUBTITLE C. TO FORBID APPLICATION UNTIL AFTER
PROMULGATION OF NEXT FALL'S REGULATIONS WOULD NOT HAVE BEEN CONSISTENT
WITH THAT PURPOSE. ACCORDINGLY, EPA HAS ELECTED TO ALLOW INTERIM
AUTHORIZATION FOR THIS STAGE (PHASE I) OF THE PROGRAM AS WELL. THOUGH
THIS TECHNICALLY WILL RESULT IN INTERIM AUTHORIZATIONIN SOME CASES
EXTENDING FOR MORE THAN THE 24 MONTHS SPECIFIED BY THE SECOND SENTENCE
OF SECTION 3006(C), THE PURPOSE BEHIND THAT 24-MONTH CEILING WILL BE
PRESERVED, AND EPA FEELS THE EXTENSION IS NECESSARY TO CARRY OUT THE
PURPOSES OF THE SECTION AS A WHOLE.
PRECONDITIONS TO APPLYING. SECTION 3006(C) OF RCRA PROVIDES THAT
INTERIM AUTHORIZATION MAY ONLY BE GRANTED TO STATES WHICH HAVE "IN
EXISTENCE A HAZARDOUS WASTE PROGRAM PURSUANT TO STATE LAW" NO MORE THAN
90 DAYS AFTER PROMULGATION OF THE RCRA PROGRAM REGULATIONS.
EPA INTERPRETS THE WORD "PROGRAM" AS USED ABOVE TO MEAN ENABLING
LEGISLATION ONLY. EPA BELIEVES THIS INTERPRETATION IS IN KEEPING WITH
CONGRESS' DESIRE TO GIVE STATES WHICH HAVE BEGUN DEVELOPING HAZARDOUS
WASTE PROGRAMS ENOUGH TIME TO BRING THESE PROGRAMS INTO CONFORMITY WITH
FEDERAL REQUIREMENTS. NINETY DAYS FROM THE DATE OF PROMULGATION OF THE
SUBSTANTIVE FEDERAL REGULATIONS -- WHEN THEIR FINAL TERMS BECOME KNOWN
FOR THE FIRST TIME -- WOULD BE AN EXTRAORDINARILY SHORT TIME IN WHICH TO
REQUIRE STATES TO REACT TO THEM AND BRING THEIR REGULATORY PROGRAMS AS A
WHOLE INTO "SUBSTANTIAL EQUIVALENCE" WITH THEM. GIVEN THE STATEMENTS
FAVORING USE OF INTERIM AUTHORIZATION IN THE LEGISLATIVE HISTORY OF
RCRA, WE DO NOT BELIEVE THAT CONGRESS INTENDED SUCH A STRICT READING.
ALTHOUGH EPA WILL NOT REQUIRE STATES TO HAVE MORE THAN LEGISLATIVE
AUTHORITY IN PLACE TO MEET THE 90-DAY CUT OFF, IT WILL REQUIRE ALL
ASPECTS OF THE STATE PROGRAM TO BE "SUBSTANTIALLY EQUIVALENT" TO THE
FEDERAL PROGRAM BY THE TIME INTERIM AUTHORIZATION IS ACTUALLY GRANTED.
FOR THESE REASONS EPA INTERPRETS THE RELEVANT STATUTORY PROVISIONS AS
REQUIRING STATES TO HAVE THE NECESSARY LEGISLATIVE AUTHORITY IN PLACE 90
DAYS AFTER PROMULGATION OF THE FEDERAL REGULATIONS. SINCE THERE WILL BE
TWO PHASES OF FEDERAL REGULATIONS AND INTERIM AUTHORIZATION FOR EACH
PHASE, THE REQUIREMENT FOR LEGISLATIVE AUTHORITY WILL BE APPLIED TO EACH
PHASE SEPARATELY. STATES THAT WISH TO APPLY FOR PHASE I INTERIM
AUTHORIZATION MUSTHAVE LEGISLATIVE AUTHORITY FOR PHASE I WITHIN 90 DAYS
FROM TODAY. STATES THAT WISH TO APPLY FOR PHASE II INTERIM
AUTHORIZATION TO ADMINISTER A PROGRAM IN LIEU OF THE FULL FEDERAL
PROGRAM AS IT WILL EXIST AFTER NEXT FALL MUST HAVE THE LEGISLATIVE
AUTHORITY NECESSARY FOR PHASE II IN EXISTENCE 90 DAYS AFTER PROMULGATION
OF THE PHASE II REGULATIONS.
WITH THE ISSUANCE OF THESE REGULATIONS, EVENTS AND POSSIBILTIES
SURROUNDING STATE ASSUMPTION OF THE RCRA PROGRAM WILL BEGIN TO UNFOLD AS
FOLLOWS:
PHASE I APPLICATION. A STATE MAY APPLY FOR INTERIM AUTHORIZATION FOR
PHASE I OF THE FEDERAL PROGRAM, WITHOUT AN ACCOMPANYING APPLICATION FOR
PHASE II, DURING THE PERIOD BETWEEN THE PROMULGATION OF REQUIREMENTS FOR
PHASE I, TODAY, AND THE EFFECTIVE DATE OF THE PHASE II REGULATIONS,
WHICH WILL BE 6 MONTHS AFTER THEIR PROMULGATION, OR SOME TIME IN THE
SPRING OF 1981.
THIS APPLICATION WINDOW, APPROXIMATELY 1 YEAR IN LENGTH, WILL DIVIDE
ROUGHLY INTO A FIRST HALF, CONSISTING OF THE ESTIMATED 6 MONTHS BETWEEN
PROMULGATION OF PHASE I AND PROMULGATION OF PHASE II; AND A SECOND
HALF, CONSISTING OF THE 6 MONTHS BETWEEN PROMULGATION OF THEPHASE II
REGULATIONS AND THEIR EFFECTIVE DATE.
DURING THE FIRST HALF OF THE "WINDOW", BEFORE PHASE II IS
PROMULGATED, ONLY APPLICATIONS FOR PHASE I WILL BE POSSIBLE. /41/
ALTHOUGH AN ARGUMENT CAN BE MADE THAT AFTER THE PHASE II REQUIREMENTS
ARE KNOWN, ONLY APPLICATIONS FOR COMPLETE INTERIM AUTHORIZATION,
INCLUDING BOTH PHASE I AND PHASE II, SHOULD BE PERMITTED, EPA HAS NOT
ACCEPTED THAT ARGUMENT IN THESE REGULATIONS. TO BE APPROVED FOR INTERIM
AUTHORIZATION, A STATE PROGRAM MUST SHOW "SUBSTANTIAL EQUIVALENCE" TO
THE FEDERAL PROGRAM. AS DISCUSSED LATER IN THIS PREAMBLE, EPA HAS
SIGNIFICANTLY TIGHTENED THE STANDARDS FOR MAKING THAT AHOWING OVER THOSE
SET FOFTH IN THE PROPOSAL, AND IT CAN BE EXPECTED THAT INSOME CASES
STATES WILL HAVE TO MAKE QUITE A FEW CHANGES IN THEIR EXISTING PROGRAMS
TO CONFORM THEM TO THE "SUBSTANTIAL EQUIVALENCE" REQUIREMENT. SIX
MONTHS MAY OFTEN BE TOO SHORT A TIME FOR THAT, AND SO A YEAR HAS BEEN
ALLOWED. LETTING THIS YEAR OVERLAP THE PROMULGATION DATE OF THE PHASE
II REGULATIONS WILL MEAN THAT THERE WILL NOT BE ANY ABRUPT INTERRUPTIONS
IN FILING AND PROCESSING OF STATE APPLICATIONS FOR INTERIM
AUTHORIZATION. BY CONTRAST, FORBIDDING STATE APPLICATIONS THAT DID NOT
INCLUDE PHASE II AS OF THE PROMULGATION DATE OF PHASE II WOULD CREATE A
PERIOD WHEN NO INTERIM AUTHORIZATION APPLICATIONS COULD BE FILED BECAUSE
STATES WOULD BE ADJUSTING THEIR PROGRAMS TO THE NEWLY PROMULGATED PHASE
II REQUIREMENTS. A DISCONTINUITY OF THIS NATURE WOULD BE CONTRARY TO
THE CONGRESSIONAL INTENT THAT INTERIM AUTHORIZATIONS NOT BE SUBJECT TO
AVOIDABLE OBSTACLES.
PHASE II APPLICATION. A STATE MAY APPLY FOR INTERIM AUTHORIZATION
FOR PHASE II OF THE FEDERAL PROGRAM (AND PHASE I, AT THE SAME TIME, IF
IT HAS NOT ALREADY BEEN APPROVED FOR PHASE I), INTERIM AUTHORIZATION.
STARTING WITH THE EFFECTIVE DATE OF THE PHASE II REGULATIONS IN
APPROXIMATELY APRIL OF 1981, ONLY APPLICATIONS FOR PHASE II, OR FOR
PHASE I AND II COMBINED, WILL BE ACCEPTED.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 098 OF 225
COSTLE DM ADMINISTRATOR
EPA
113597
REGULATIONS
ALL PHASE I INTERIM AUTHORIZATIONS WILL EXPIRE AUTOMATICALLY OCTOBER
1981 IF A PHASE II APPLICATION HAS NOT BEEN FILED BY THAT DATE. IN
OTHER WORDS, ANY STATE WITH PHASE I INTERIM AUTHORIZATION MUST APPLY FOR
PHASE II APPROXIMATELY BY OCTOBER 1981, OR LOSE THE PROGRAM. EPA
ESTABLISHED THIS REQUIREMENT TO MINIMIZE THE TIME DURING WHICH STATES
WOULD BE OPERATING INTERIM AUTHORIZATION PROGRAMS THAT DID NOT
CORRESPOND TO THE THEN EFFECTIVE FEDERAL PROGRAM, AND TO KEEP STATES
MOVING TOWARD FINAL AUTHORIZATION. THE DATES ADOPTED ALLOW STATES
APPROXIMATELY 12 MONTHS AFTER PROMULGATION OF THE PHASE II REGULATIONS
TO APPLY FOR PHASE II INTERIM AUTHORIZATION. THIS IS THE SAME LENGTH OF
TIME ALLOWED TO STATES TO FILE PHASE I APPLICATIONS, AND WAS SET FOR THE
SAME REASONS. IT ALLOWS A PERIOD OF 6 MONTHS (APPROXIMATELY APRIL 1982
TO OCTOBER 1981) WHEN STATES COULD BE OPERATING PHASE I PROGRAMS EVEN
THOUGH THE PHASE II PROGRAM WAS EFFECTIVE. ALTHOUGH SUCH A PHASE-IN
TIME IS INEVITABLE IF THE INTERIM AUTHORIZATION PROCESS IS TO BE KEPT
OPERATING WITHOUT AVOIDABLE INTERRUPTION AS CONGRESS INTENDED, IT HAS
OBVIOUS POTENTIAL FOR CREATING CONFUSION AND INCONSISTENCY AND ITS
DURATION SHOULD BE MINIMIZED. FINALLY, CUTTING OFF PHASE I IS DESIRABLE
AS A MEANS OF MAKING SURE THAT STATES ARE MOVING TOWARD FINAL
AUTHORIZATION AT LEAST TO THE EXTENT OF ADOPTING THE REQUIREMENTS
NECESSARY FOR PHASE II.
RELATIONSHIP BETWEEN INTERIM AUTHORIZATION AND FINAL AUTHORIZATION.
A STATE MAY APPLY FOR FINAL AUTHORIZATION, IF GRANTED, AUTOMATICALLY
ENDS INTERIM AUTHORIZATION IN THAT STATE AND THE APPLICABILITY OF
SUBPART F.
NO APPLICATIONS FOR INTERIM AUTHORIZATION OF ANY SORT WILL BE
ACCEPTED MORE THAN 6 MONTHS AFTER THE PHASE II REGULATIONS BECOME
EFFECTIVE. IN OTHER WORDS, NO APPLICATIONS WILL BE ACCEPTED AFTER
APPROXIMATELY OCTOBER OF 1981. EPA HAS ESTABLISHED THIS REQUIREMENT
BECAUSE APPLICATIONS MADE AFTER THIS DATE, TAKING INTO ACCOUNT THE
NECESSARY PERIOD FOR PROCESSING AND APPROVING A STATE SUBMISSION, WOULD
RESULT IN CONFERRING INTERIM AUTHORIZATION THAT WOULD AT MOST, LAST ONLY
SLIGHTLY MORE THAN A YEAR BEFORE IT WOULD AUTOMATICALLY TERMINATE. THIS
IS TOO SHORT A TIME TO JUSTIFY THE ADMINISTRATIVE EFFORT REQUIRED TO
DRAW UP AND APPROVE THE APPLICATION, PARTICULARLY WHEN AN APPLICATION
FOR FINAL AUTHORIZATION WOULD HAVE TO BE DRAWN UP, REVIEWED, AND
APPROVED WITHIN THAT SAME YEAR.
FINALLY, AS THE STATUTE REQUIRES, ANY STATE WITH INTERIM
AUTHORIZATION THAT HAS NOT RECEIVED FINAL AUTHORIZATION 2 YEARS AFTER
THE EFFECTIVE DATE OF THE PHASE II REGULATIONS (ABOUT APRIL 1983) WILL
AUTOMATICALLY LOSE INTERIM AUTHORIZATION AND THE PROGRAM WILL REVERT TO
EPA. (SEE SCHEDULE OF EVENTS.)
BILLING CODE 6560-01-M
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 099 OF 225
COSTLE DM ADMINISTRATOR
EPA
113598
REGULATIONS
SCHEDULE OF EVENTS
TABLE OMITTED
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 100 OF 225
COSTLE DM ADMINISTRATOR
EPA
113599
REGULATIONS
MANIFEST SYSTEM. IN GENERAL, AS LATER PORTIONS OF THIS PREAMBLE
DISCUSS, STATE PROGRAMS APPROVED FOR PHASE I OR PHASE II MUST BE
SUBSTANTIALLY EQUIVALENT TO EACH PART OF THE CORRESPONDING FEDERAL
PROGRAM. FOR REASONS ALSO DISCUSSED LATER, EPA HAS MADE AN EXCEPTION
FOR THE MANIFEST SYSTEM AND ASSOCIATED GENERATOR AND TRANSPORTER
REQUIREMENTS PROMULGATED AS PART OF THE PHASE I PROGRAM. STATE PROGRAMS
THAT DO NOT CONTAIN PROVISIONS CORRESPONDING TO THESE STANDARDS MAY
STILL BE APPROVED FOR INTERIM AUTHORIZATION. MORE PRECISELY, A STATE
WILL HAVE THREE CHOICES IN DECIDING HOW TO DEAL WITH THESE REQUIREMENTS:
1. IT MAY APPLY FOR INTERIM AUTHORIZATION FOR THESE REQUIREMENTS
ALONG WITH THE REST OF ITS PHASE I APPLICATION. THIS WOULD HAVE BEEN
THE REQUIRED COURSE IF EPA HAD NOT MADE SPECIAL PROVISION FOR THIS PART
OF THE PROGRAM, AND IT MAY STILL BE THE OPTION CHOSEN BY A STATE.
2. A STATE MAY APPLY FOR INTERIM AUTHORIZATION TO RUN THE MANIFEST
SYSTEM AS PART OF ITS PHASE II APPLICATION, EVEN THOUGH THE
CORRESPONDING FEDERAL REQUIREMENTS WERE PROMULGATED IN PHASE I. EPA WILL
OPERATE THE MANIFEST IN THAT STATE DURING PHASE I. THE ONLY RESTRICTION
PLACED ON THIS APPLICATION THAT WILL NOT BE PLACED ON PHASE II
APPLICATIONS FOR OTHER PARTS OF THE PROGRAM IS THAT THE LEGAL AUTHORITY
FOR THE MANIFEST SYSTEM MUST HAVE BEEN IN PLACE NO LATER THAN 90 DAYS
AFTER THE PROMULGATION OF PHASE I. SINCE THE MANIFEST SYSTEM IS PART OF
PHASE I OF THE FEDERAL PROGRAM, THIS REQUIREMENT IS NECESSARY TO SATISFY
THE REQUIREMENT OF RCRA THAT STATES ONLY BE GRANTED INTERIM
AUTHORIZATION IF THEY HAVE A PROGRAM "IN EXISTENCE" 90 DAYS AFTER THE
PROMULGATION OF THE FEDERAL PROGRAM.
3. FINALLY, A STATE MAY APPLY FOR AND RECEIVE BOTH PHASE I AND PHASE
II OF INTERIM AUTHORIZATION WITHOUT BEING AUTHORIZED TO RUN THE MANIFEST
SYSTEM. IN THAT CASE, EPA WILL OPERATE THE MANIFEST SYSTEM IN THAT
STATE THROUGHOUT ITS INTERIM AUTHORIZATION. ASSUMPTION OF THE MANIFEST
SYSTEM WILL STILL BE REQUIRED IN THESE STATES BEFORE FINAL
AUTHORIZATION.
THIS SECTION LISTS THE ELEMENTS A STATE MUST SUBMIT TO EPA IN ITS
APPLICATION FOR INTERIM AUTHORIZATION. IT IS LARGELY DERIVED FROM
RELEVANT PORTIONS OF SECTION 123.3, THE CORRESPONDING PROVISION
GOVERNING FINAL AUTHORIZATION. DUE TO THE PHASED NATURE OF INTERIM
AUTHORIZATION, A STATE WILL HAVE TO AMEND ALL OR SOME OF THE ELEMENTS IN
ITS PHASE I APPLICATION WHEN IT APPLIES FOR PHASE II.
THIS SECTION LISTS THE REQUIRED COMPONENTS OF A COMPLETE PROGRAM
DESCRIPTION, WHICH IS ONE ELEMENT OF THE PROGRAM SUBMISSION. IT IS
LARGELY DERIVED FROM SECTION 123.4, THE CORRESPONDING PROVISION
GOVERNING FINAL AUTHORIZATION.
IN THE JUNE 14, 1979 PROPOSAL, ONLY THE RCRA PROGRAM MANDATED STATES
TO IDENTIFY A LEAD AGENCY FOR STATE HAZARDOUS WASTE PROGRAM APPROVAL.
EPA RECEIVED SEVERAL COMMENTS NOTING THIS FACT. ONE COMMENTER STATED
THAT BY THIS REQUIREMENT EPA WAS IMPROPERLY DICTATING A STATE'S
INTERNALORGANIZATION. THE INTENT OF THE REQUIREMENT WAS ONLY THE
FACILITATE COMMUNICATION BETWEEN EPA AND THE STATE, DUE TO THE
MULTIMEDIA NATURE OF THE RCRA PROGRAM. THE TERM "LEAD" MEANS ONLY "THE
PRINCIPAL POINT OF CONTACT WITH EPA," AND DOES NOT REFER TO OVERALL
PROGRAM RESPONSIBILITY.
IN ACCORDANCE WITH THE PROVISIONS DESCRIBED ABOVE, THE ATTORNEY
GENERAL'S STATEMENT MUST ATTEST TO THE ENACTMENT OF ANY NECESSARY
LEGISLATION WITHIN 90 DAYS OF PROMULGATION OF THE PHASE OF THE FEDERAL
PROGRAM FOR WHICH INTERIM AUTHORIZATION IS SOUGHT.
AS WITH THE OTHER PROGRAM ELEMENTS, ATTORNEY GENERALS' STATEMENTS
SUBMITTED FOR PHASE I AUTHORIZATION WILL PROBABLY HAVE TO BE AMENDED TO
BE ACCEPTABLE FOR PHASE II.
THIS SECTION CONTAINS THE REQUIRED COMPONENTS OF THE MEMORANDUM OF
AGREEMENT (MOA). THE MOA IS ALSO A PART OF THE PROGRAM SUBMISSION UNDER
SECTION 123.123. IT LARGELY DERIVES FROM SECTION 123.6, THE
CORRESPONDING PROVISION GOVERNING FINAL AUTHORIZATION. THOSE COMPONENTS
OF THE MOA WHICH CONCERN ONLY PERMITTING PROCEDURES AND WHICH ARE NOT
RELEVANT UNTIL THE COMMENCEMENT OF PHASE II, HAVE BEEN DISTINGUISHED AND
PUT IN A SEPARATE PARAGRAPH AND NEED NOT BE INCLUDED IN MOA'S WHICH ARE
PART OF A PHASE I APPLICATION. ANY MOA NEGOTIATED DURING PHASE I MUST
BE AMENDED AT THE TIME OF THE PHASE II APPLICATION TO INCORPORATE
REQUIRED PHASE II COMPONENTS.
EPA'S AUTHORITY TO INSPECT HAS BEEN MODIFIED SLIGHTLY IN THE FINAL
RULE, IN THAT SECTION 123.126(B)(6) HAS BEEN ADDED TO CLARIFY THAT THE
MOA CANNOT LIMIT EPA'S RIGHT TO INSPECT GENERATORS, TRANSPORTERS, OR
NON-MAJOR FACILITIES WHEN THERE IS CAUSE TO BELIEVE A FACILITY IS NOT IN
COMPLIANCE. ONE COMMENTER STATED THAT EPA'S INSPECTIONS SHOULD BE
LIMITED TO ONLY "PROBLEM SITES." THIS IMPLIES THAT EPA SHOULD BECOME
INVOLVED ONLY AFTER AN ACTIVITY HAS BEEN IDENTIFIED AS A "PROBLEM." THIS
WOULD NEGATE A SIGNIFICANT ASPECT OF THE OVERSIGHT ROLE, WHICH IS TO
ENSURE THATPROBLEM SITES DO NOT ARISE OR ARE IDENTIFIED IN THE FIRST
PLACE.
AN ADDITIONAL COMMENT ON EPA'S INSPECTION AUTHORITY WAS THAT ONLY EPA
EMPLOYEES CAN PERFORM INSPECTION, NOT AGENCY CONTRACTORS. THIS IS
CORRECT AS THE ACT NOW STANDS. HOWEVER, EPA BELIEVES THAT STATUTE
PERMITS EPA EMPLOYEES TO BE ACCOMPANIED BY CONTRACT PERSONNEL WHO WILL
ASSIST THEM IN THEIR WORK. THE EXTRA PERSONNEL ADD LITTLE TO THE DEGREE
OF INTRUSIVENESS WHICH WOULD RESULT. A FEDERAL EMPLOYEE WILL BE IN
CHARGE AND WILL BE REQUIRED TO OBTAIN ANY NECESSARY WARRANT. THE
ASSISTANCE OF CONTRACT PERSONNEL IS LIKELY TO MEAN, HOWEVER, THAT THE
SUBSTANTIVE GOALS OF THE ACT WILL BE BETTER SERVED.
THIS IS A PROVISION OF THE SUBPART F REGULATIONS THAT DOES NOT HAVE
ANY COUNTERPART IN SUBPARTS A OR B. IT REQUIRES STATES WHICH APPLY FOR
INTERIM AUTHORIZATION TO SET OUT IN SOME DETAIL HOW THEY WILL USE THE
TIME OF INTERIM AUTHORIZATION TO QUALIFY FOR FINAL AUTHORIZATION.
THE STATUTE OBVIOUSLY INTENDS INTERIM AUTHORIZATION TO BE A
STEPPING-STONE TO FINAL AUTHORIZATION. BEYOND THIS, GREAT DISRUPTION
WOULD OCCUR IF A LARGE NUMBER OF STATES WITH INTERIM AUTHORIZATION WHEN
INTERIM AUTHORIZATION WAS OVER. THE PROGRAM WOULD THEN REVERT IN FULL
TO EPA AND WOULD HAVE TO BE REDELEGATED OVER THE ENSUING YEARS AS STATES
PULLED THE NECESSARY AUTHORITIES TOGETHER. FOR THESE REASONS, EPA HAS
REQUIRED STATES TO ASSESS AND DOCUMENT IN ADVANCE THE ACTIONS NEEDED TO
ESTABLISH THE FINAL PROGRAM.
AS THE REGULATION EXPLICITLY PROVIDES, STATES MUST SUBMIT THEIR
AUTHORIZATION PLAN WITH THE PHASE I APPLICATIN AND UPDATE IT WITH THEIR
PHASE II APPLICATION. OF COURSE, THE AUTHORIZATION PLAN WITH THE PHASE
I APPLICATION ONLY NEEDS TO ADDRESS THE PORTIONS OF THE FINAL PROGRAM
THAT ARE INCLUDED IN PHASE I. THE FINAL REQUIREMENTS CONTAINED IN PHASE
II -- BASICALLY THE DETAILED TECHNICAL STANDARDS FOR TREATMENT, STORAGE,
AND DISPOSAL OF HAZARDOUS WASTES -- CAN BE ADDRESSED FOR THE FIRST TIME
IN THE PHASE II APPLICATION.
THE ATTORNEY GENERAL'S STATEMENT REQUIRED UNDER SECTION 123.125 MUST
CERTIFY THAT THE AUTHORIZATION PLAN, IF CARRIED OUT, WOULD MEET THE
REQUIREMENTS OF FINAL AUTHORIZATION.
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FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 101 OF 225
COSTLE DM ADMINISTRATOR
EPA
113600
REGULATIONS
EPA DOES NOT AGREE WITH THE COMMENT THAT EPA SHOULD MAKE THE DECISION
AS TO WHAT MODIFICATIONS ARE NECESSARY FOR FINAL AUTHORIZATION.
ALTHOUGH EPA WILL PROVIDE GUIDANCE AND ASSISTANCE TO THE STATE IN
DEVELOPING ITS AUTHORIZATION PLAN, IT IS THE STATE WHICH IS IN THE BEST
POSITION TO IDENTIFY REQUIRED REVISIONS AND MODIFICATIONS AND TO
DETERMINE HOW BEST TO ACCOMPLISH THEM.
THESE SECTIONS SET FORTH THE SUBSTANTIVE REQUIREMENTS FOR AN
APPROVABLE STATE INTERIM AUTHORIZATION PROGRAM. THEY HAVE BEEN ENTIRELY
REWRITTEN BECAUSE EPA'S POSITION ON PROGRAM REQUIREMENTS FOR INTERIM
AUTHORIZATION HAS CHANGED SIGNIFICANTLY SINCE THE JUNE 14, 1979
PROPOSAL. THERE EPA STATED THAT ELIGIBILITY FOR INTERIM AUTHORIZATION
"WOULD REQUIRE THE STATES TO IMPLEMENT (I.E., REGULATE AND ENFORCE)
CONTROLS OVER AT LEAST EITHER ON-SITE OR OFF-SITE DISPOSAL OF HAZARDOUS
WASTES." EPA AGREES WITH THE NUMEROUS COMMENTERS THAT ARGUED THAT A
STATE SHOULD HAVE A FUNDAMENTALLY COMPLETE HAZARDOUS WASTE MANAGEMENT
PROGRAM AS COMPARED WITH THE FEDERAL PROGRAM IN ORDER TO RECEIVE INTERIM
AUTHORIZATION.
IN ADDITION, THIS FINAL REGULATION IS MUCH MORE SPECIFIC THAN THE
PROPOSAL IN DESCRIBING WHAT A STATE PROGRAM MUST DO TO RECEIVE INTERIM
AUTHORIZATION. THIS SPECIFICITY SHOULD ALLEVIATE THE LACK OF CLARITY IN
THE PROPOSED REGULATIONS WHICH NUMEROUS COMMENTERS POINTED OUT.
IN REWRITING THESE PROVISIONS EPA HAD TO DEAL WITH THE QUESTION OF
THE DEGREE OF SIMILARITY TO THE FEDERAL PROGRAM IT SHOULD REQUIRE OF
STATE PROGRAMS BEFORE APPROVING THEM FOR INTERIM AUTHORIZATION, AND THE
QUESTION OF WHETHER STATE PROGRAMS INCLUDING LESS THAN ALL THE
REQUIREMENTS OF THE CORRESPONDING PHASE OF THE FEDERAL PROGRAM SHOULD BE
APPROVED.
DEGREE OF SIMILARITY. IN ESTABLISHING THE SUBSTANTIVE REQUIREMENTS
FOR INTERIM AUTHORIZATION, AND THE QUESTION OF WHETHER STATE PROGRAMS
INCLUDING LESS THAN ALL THE REQUIREMENTS OF THE CORRESPONDING PHASE OF
THE FEDERAL PROGRAM SHOULD BE APPROVED.
DEGREE OF SIMILARITY. IN ESTABLISHING THE SUBSTANTIVE REQUIREMENTS
FOR INTERIM AUTHORIZATION, EPA HAS HAD TO BALANCE TWO COMPETING
INTERESTS EVIDENT IN RCRA, ITS LEGISLATIVE HISTORY, AND THE PUBLIC
COMMENTS ON EPA'S PROPOSED GUIDELINES FOR STATE PROGRAMS. THESE TWO
INTERESTS ARE: (1) ASSURING THAT AT LEAST A MINIMUM LEVEL OF PROTECTION
OF THE HUMAN HEALTH AND THE ENVIRONMENT IS ESTABLISHED NATIONWIDE; AND
(2) ENCOURAGING CONTINUED DEVELOPMENT OF STATES' OWN PROGRAMS WITHOUT
DISRUPTION, SO THAT AS MANY STATES AS POSSIBLE CAN ASSUME RESPONSIBILITY
FOR THE PROGRAM.
THE LEGISLATIVE HISTORY INDICATES THAT CONGRESS CREATED INTERIM
AUTHORIZATION TO RECONCILE THESE TWO INTERESTS. INTERIM AUTHORIZATION
ALLOWS STATE PROGRAMS TIME TO ACHIEVE THE DESIRED LEVEL OF CONTROL
(COMPLETE EQUIVALENCE WITH THE FEDERAL PROGRAM), BUT ALSO REQUIRES SUCH
PROGRAMS TO PROVIDE AN ADEQUATE DEGREE OF PROTECTION TO HUMAN HEALTH AND
THE ENVIRONMENT. CONGRESS SPECIFIED IN SECTION 3006 (C) THAT A STATE
COULD RECEIVE INTERIM AUTHORIZATION IF ITS PROGRAM WAS "SUBSTANTIALLY
EQUIVALENT" TO THE FEDERAL PROGRAM, LEAVING IT UP TO EPA TO DEFINE
"SUBSTANTIAL EQUIVALENCE."
THERE WERE SEVERAL PUBLIC COMMENTS ON THE NEED FOR A WORKING
DEFINITION OF THIS TERM, IN ORDER TO REMEDY ITS VAGUENESS. EPA NOW
DEFINES SUBSTANTIAL EQUIVALANCE AS "TO A LARGE DEGREE, OR IN THE MAIN,
EQUAL IN EFFECT." "EFFECT," OF COURSE, COULD MEAN EITHER EFFECT IN
PROTECTING HEALTH AND THE ENVIRONMENT OR EFFECT IN THE SENSE OF
REQUIREMENTS IMPOSED ON REGULATED INDUSTRIES AND OTHERS. EPA HAS AND
INTENDS TO KEEP BOTH THESE MEANINGS IN MIND, AS WELL AS CONCERNS ABOUT
STATE AUTONOMY, IN JUDGING THE SUBSTANTIAL EQUIVALENCE OF STATE
PROGRAMS. SO, FOR EXAMPLE, VARIATIONS IN THE MANIFEST SYSTEM, WHICH
CALLS FOR EVENTUALLY CREATING A SINGLE ACCOUNTING SYSTEM TO TRACK WASTES
FROM STATE OF ORIGIN TO STATE OF DEPOSITION, COULD BE EXTREMELY
BURDENSOME TO THE COMPANIES THAT WOULD HAVE TO COPE WITH THE
INCONSISTENCIES, AND TO THE GOVERNMENTS THAT WOULD HAVE TO REGULATE
TAKING THE DIFFERENCES IN THE MANIFEST SYSTEMS INTO ACCOUNT. HERE, BOTH
CONCERN FOR THE ENVIRONMENT AND CONCERN FOR AVOIDING REGULATORY BURDEN
ARGUE FOR A RELATIVELY HIGH DEGREE OF SIMILARITY. PERMITTING STANDARDS,
BY CONTRAST, WILL BE APPLIED IN LOCAL DECISIONS, AND THE INITIAL FEDERAL
STANDARDS WILL LEAVE A GOOD DEAL OF DISCRETION TO PERMIT-WRITERS. HERE
THE ARGUMENTS FOR UNIFORMITY ARE WEAKER, THOUGH EPA SETS MINIMUM
STANDARDS TO ASSURE PROTECTION OF HUMAN HEALTH AND THE ENVIRONMENT.
EPA BELIEVES THIS GENERAL WORKING DEFINITION, AND THE SPECIFIC
REQUIREMENTS FOUND IN THESE SECTIONS, REPRESENT A MIDDLE GROUND BETWEEN
THE APPROACHES ADVOCATED IN THE PUBLIC COMMENTS. THE COMMENTS GENERALLY
FELL INTO TWO GROUPS. SOME COMMENTERS WANTED EPA TO REQUIRE STATES TO
REGULATE ALL FACILITIES THAT THE FEDERAL PROGRAM WOULD, AND WATED STATE
STANDARDS TO BE VERY SIMILAR TO THE FEDERAL STANDARDS. OTHERS THOUGHT
THAT STATES SHOULD ONLY REQUIRE MINIMAL COVERAGE OF EITHER ON-SITE OR
OFF-SITE DISPOSAL DURING INTERIM AUTHORIZATION, AND THOUGHT EPA NEED NOT
EXAMINE THE SUBSTANCE OF STATE REQUIREMENTS OR COMPARE THEM TO FEDERAL
REQUIREMENTS, BUT ONLY EXAMINE THE EFFECTIVENESS OF THE STATE PROGRAM.
AT LEAST ONE COMMENTER SUGGESTED THAT THE REGULATIONS SHOULD
EXPLICITLY STATE THAT A STATE PROGRAM MAY BE LESS STRINGENT THAN THE
FEDERAL PROGRAM FOR INTERIM AUTHORIZATION. THE AGENCY BELIEVES THAT
WHILE SECTION 3009 DISALLOWS IMPOSITION BY A STATE OF "ANY REQUIREMENTS
LESS STRINGENT THAN THOSE AUTHORIZED UNDER THIS SUBTITLE RESPECTING THE
SAME MATTER AS GOVERNED BY (EPA) REGULATIONS. . .," SECTION 3009 WAS
CLEARLY NOT INTENDED TO MANDATE APPLICATION OF A "NO LESS STRINGENT"
STANDARD TO STATE PROGRAMS WHICH SEEK INTERIM AUTHORIZATION.
APPLICATION OF SECTION 3009 TO SUCH STATE PROGRAMS IS IN DIRECT
CONTRADICTION TO THE "SUBSTANTIALLY EQUIVALENT" STANDARD FOR INTERIM
AUTHORIZATION MANDATED IN SECTION 3006(C).
THUS, EPA WILL NOT APPLY THE MANDATE OF SECTION 3009 TO STATES
SEEKING INTERIM AUTHORIZATION. THIS POSITION IS UNCHANGED FROM THE
AGENCY'S POSITION IN THE JUNE 14, 1979 PROPOSAL. EPA WILL HOWEVER,
APPLY THE MANDATE OF SECTION 3009 TO STATE PROGRAMS SEEKING FINAL
AUTHORIZATION AND ALL STATE PROGRAMS WILL BE REQUIRED TO SATISFY
SECTIONS 3009 TO RECEIVE FINAL AUTHORIZATION.
EPA ALSO BELIEVES THAT STATES THAT HAVE NOT RECEIVED INTERIM
AUTHORIZATION ARE SUBJECT TO THE "NO LESS STRINGENT" REQUIREMENT OF
SECTION 3009. HOWEVER, AS A PRACTICAL MATTER, IT IS UNLIKELY THAT EPA
IN THE EARLY YEARS OF THE PROGRAM WOULD TREAT THIS AS A MATTER OF HIGH
PRIORITY AND TAKE ENFORCEMENT ACTIONS.
PARTIAL PROGRAMS. BECAUSE HAZARDOUS WASTE MANAGEMENT IS GENERALLY A
NEW ACTIVITY FOR STATE GOVERNEMENT, IT IS INEVITABLE THAT MANY STATES
WILL NOT, BY THE EFFECTIVE DATE OF THE FEDERAL PROGRAM, HAVE IN PLACE
PROGRAMS WHICH CONTROL ALL OF THE SAME ASPECTS AS THE FEDERAL PROGRAM
CONTROLS, ESPECIALLY SINCE MANY STATE REGULATIONS WILL BE PATTERNED
AFTER THE FEDERAL REGULATIONS WHICH ARE JUST NOW BEING PROMULGATED.
THIS SITUATION RAISED A MAJOR POLICY DECISION FOR EPA. THE AGENCY HAD
TWO OPTIONS:
(1) TO AUTHORIZE IMMEDIATELY THOSE PARTS OF A STATE PROGRAM THAT ARE
SUBSTANTIALLY EQUIVALENT TO THE FEDERAL PROGRAM, OR
(2) TO POSTPONE AUTHORIZATION IN A STATE UNTIL THE ENTIRE
STATE PROGRAM IS SUBSTANTIALLY EQUIVALENT.
IN THE JUNE 14, 1979 PROPOSAL THE AGENCY REJECTED PARTIAL PROGRAMS
FOR FINAL AUTHORIZATION. THE AGENCY, HOWEVER, SOLICITED COMMENTS ON THE
POSSIBLE ALTERNATIVES TO EPA REGULATION OF ACTIVITIES THAT ARE NOT
REGULATED BY THE STATE DURING INTERIM AUTHORIZATION. COMMENTS RANGED
FROM ENDORSEMENT OF INTERIM AUTHORIZATION OF PARTS OF STATE PROGRAMS
WHICH MEET FEDERAL REQUIREMENTS, TO REJECTION OF STATE REGULATION OF
CERTAIN ACTIVITIES AND EPA REGULATION OF OTHER.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 102 OF 225
COSTLE DM ADMINISTRATOR
EPA
113601
REGULATIONS
/5/ THE PHASING OF INTERIM AUTHORIZATION CAN ALSO BE SEEN AS THE
AUTHORIZATION OF PART OF A STATE PROGRAM AND THUS AS ANOTHER EXCEPTION
TO THE REQUIREMENT FOR A COMPLETE STATE PROGRAM. EPA DOES NOT VIEW IT
THIS WAY, HOWEVER, FOR TWO REASONS. FIRST, THE TWO PHASES OF INTERIM
AUTHORIZATION ARE NECESSITATED BY THE TWO PHASES OF THE FEDERAL
REGULATIONS, AND THE STATE PROGRAM FOR PHASE I OR PHASE II WILL BE
SUBSTANTIALLY EQUIVALENT TO THE FEDERAL PROGRAM FOR PHASE I AND PHASE
II; AND SECOND, EPA DOES NOT INTEND TO AUTHORIZE A STATE FOR ONLY ONE
PHASE OF THE PROGRAM (EVIDENCED BY THE AUTOMATIC REVERSION OF PHASE I TO
EPA IF A STATE DOES NOT APPLY FOR, OR IS DENIED, PHASE II).
/6/ FOR EXAMPLE, SINCE EPA WILL NOT ENFORCE THE FEDERAL REQUIREMENTS
FOR THOSE ELEMENTS OF A STATE PROGRAM WHICH IT HAS AUTHORIZED, FURTHER
FRAGMENTATION OF PROGRAM APPROVAL WOULD SUBJECT THE REGULATED COMMUNITY
TO A PATCHWORK OF STATE AND FEDERAL REGULATIONS.
COMMENTERS STRONGLY URGED CLARIFICATION OF THIS POINT. WITH ONE
MAJOR EXCEPTION, EPA HAS CHOSEN TO POSTPONE INTERIM AUTHORIZATION IN A
STATE UNTIL THE ENTIRE STATE PROGRAM FOR THE RELEVANT PHASE OF THE
FEDERALPROGRAM IS SUBSTANTIALLY EQUIVALENT THE THE RELEVANT PHASE OF THE
FEDERAL PROGRAM. THE EXCEPTION, COVERING THE MANIFEST SYSTEM AND OTHER
GENERATOR AND TRANSPORTER REQUIREMENTS, IS DISCUSSED BELOW. /5/
IN ALL OTHER AREAS, THE STATE PROGRAM MUST BE SUBSTANTIALLY
EQUIVALENT TO THE RELEVANT PHASE OF THE FEDERAL PROGRAM. FURTHER
FRAGMENTATION OF THE PROGRAM WITH A VARIETY OF PROGRAM PARTS DIVIDED
BETWEEN THE STATE AND EPA WOULD RESULT IN EXCESSIVE COMPLEXITY FOR
REGULATED PARTIES. /6/
SECTION 123.126(A) (IDENTIFICATION AND LISTING OF HAZARDOUS WASTES).
THIS PARAGRAPH PROVIDES THAT STATES SEEKING INTERIM AUTHORIZATION MUST
DEMONSTRATE CONTROL OVER A "A UNIVERSE OF HAZARDOUS WASTES GENERATED,
TRANSPORTED, TREATED, STORED, AND DISPOSED OF IN THE STATE WHICH IS
NEARLY IDENTICAL TO THAT WHICH WOULD BE CONTROLLED BY THE FEDERAL
PROGRAM. . ."
THE DEFINITION OF SUBSTANTIAL EQUIVALENCE FOR THE IDENTIFICATION AND
LISTING OF HAZARDOUS WASTES IS ONE OF THE KEYS TO CONTROL OF HAZARDOUS
WASTE BY STATES DURING INTERIM AUTHORIZATION. THIS DEFINITION WILL
NECESSARILY DETERMINE WHAT WASTES WILL BECOME PART OF THE HAZARDOUS
WASTE MANAGEMENT PROGRAM REQUIRED BY RCRA, THUS ASSURING THEIR PROPER
MANAGEMENT. WASTES OUTSIDE OF THE DEFINITION WILL NOT RECEIVE THE
ATTENTION RCRA AFFORDS. THUS, IT IS IMPORTANT THAT DURING INTERIM
AUTHORIZATION STATES BE REQUIRED TO CONTROL AS MANY HAZARDOUS WASTES AS
POSSIBLE WITHOUT DETRACTING FROM THE BASIC CONCEPTS OF SUBSTANTIAL
EQUIVALENCE AND INTERIM AUTHORIZATION. IN SETTING THE APPROPRIATE LEVEL
OF CONTROL EPA HAD TO BALANCE ARGUMENTS THAT STATES BE REQUIRED TO
CONTROL EXACTLY THE SAME WASTES AS CONTROLLED UNDER THE FEDERAL PROGRAM,
THAT DIFFERING DEFINITIONS AND LISTS WOULD CREATE INTOLERABLE
INCONSISTENCIES AND THAT STATES ONLY CONTROL A UNIVERSE OF WASTES
"SUBSTANTIALLY EQUIVALENT" TO THE FEDERAL PROGRAM.
EPA CANNOT ACCEPT THE SUGGESTION THAT INTERIM AUTHORIZATION BE
GRANTED ONLY TO STATES THAT DEFINE HAZARDOUS WASTES IN THE SAME MANNGER
AS EPA DEFINES HAZARDOUS WASTES. PRESENT STATE LAWS AND REGULATIONS
DEFINE HAZARDOUS WASTES IN WAYS WHICH MAKE IT LIKELY THAT FEW IF ANY
STATES NOW COVER EXACTLY THE SAME WASTES AS IDENTIFIED IN THE SECTION
3001 REGULATION. TIME WILL BE NEEDED TO BRING THE STATE DEFINITIONS
INTO CONFORMACE WITH THE FEDERAL DEFINITION.
IT IS TRUE, HOWEVER, THAT ALLOWING DIFFERENT STATES TO HAVE
DEFINITIONS OR LISTS OF HAZARDOUS WASTES WHICH ARE DIFFERENT FROM EACH
OTHER OR FROM THE FEDERAL DEFINITION OR LIST HAS THE POTENTIAL FOR
CREATING CONSIDERABLE CONFUSION. WHEN A WASTE MOVES FROM A STATE IN
WHICH IT IS DEFINED OR LISTED AS HAZARDOUS INTO ONE WHERE IT IS NOT, OR
THE REVERSE, QUESTIONS OF HOW TO DEAL WITH THE WASTE AND HOW TO TREAT
THE MANIFEST DOCUMENTS WILL ARISE AND MUST BE DEALT WITH. EPA'S ANSWERS
TO THOSE QUESTIONS ARE GIVEN BELOW, BUT THE PROBLEM WILL NOT ARISE AT
ALL TO THE EXTENT THE "UNIVERSE" OF WASTES IS THE SAME FROM STATE TO
STATE.
THE BURDENS CREATED BY THESE INCONSISTENCIES WILL VARY, OF COURSE,
WITH THEIR EXTENT. IN AN ATTEMPT TO MINIMIZE THEM WITHOUT FORCING ALL
STATE PROGRAMS INTO THE SAME MOLD IMMEDIATELY, EPA HAS ADOPTED A
SOMEWHAT TIGHTER FORMULATION OF THE BASIC TEST OF "SUBSTANTIAL
EQUIVALENCE" HERE THAN FOR OTHER ELEMENTS OF INTERIM AUTHORIZATION DUE
TO THE GREATER POTENTIAL FOR HARM FROM WASTES NOT DEFINED OR LISTED AS
HAZARDOUS AND NOT PROPERLY MANAGED EVEN DURING INTERIM AUTHORIZATION.
SECTION 123.128(B)-(D) (GENERATOR, TRANSPORTER, AND RELATED MANIFEST
REQUIREMENTS). THE ONE AREA WHERE EPA WILL ALLOW AN EXCEPTION TO A
COMPLETE, SUBSTANTIALLY EQUIVALENT STATE PROGRAM IS THE MANIFEST SYSTEM
AND THE ASSOCIATED GENERATOR AND TRANSPORTER REQUIREMENTS. IT APPEARS
TO EPA THAT THESE ARE THE PARTS OF THE FEDERAL PROGRAM FOR WHICH STATES
WOULD HAVE THE MOST DIFFICULTY IN MEETING THE SUBSTANTIAL EQUIVALENCE
TEST BY THE EFFECTIVE DATE OF PHASE I. IN PARTICULAR, MANY STATES
PROBABLY WILL NOT HAVE A MANIFEST SYSTEM IN PLACE THAT ADEQUATELY
CONTROLS INTERSTATE SHIPMENTS OF HAZARDOUS WASTES CONSISTENT WITH THE
FEDERAL MANIFEST SYSTEM. EPA DOES NOT BELIEVE THAT THE LACK OF
AUTHORITY FOR THIS PROGRAM PART SHOULD CAUSE STATES TO BE DENIED INTERIM
AUTHORIZATION. THAT APPROACH COULD RESULT IN A GREAT MANY STATES BEING
DENIED INTERIM AUTHORIZATION CONTRARY TO BASIC CONGRESSIONAL INTENT.
SECTION 123.128(D) THEREFORE ALLOWS EPA TO ADMINISTER AND ENFORCE THE
FEDERAL NATIONWIDE MANIFEST SYSTEM AND GENERATOR AND TRANSPORTER
REQUIREMENTS IN A STATE WITHOUT DEPRIVING THE STATE OF INTERIM
AUTHORIZATION FOR THE REST OF ITS PROGRAM. THIS SPECIFIC OPTION IS NEW,
THOUGH IN THE PROPOSAL EPA DID DISCUSS THE ALTERNATIVE OF AN ENTIRELY
FEDERAL MANIFEST SYSTEM. IN THE JUNE 14, 1979 PROPOSAL EPA SUGGESTED
THAT STATES MUST IMPLEMENT ALL STATUTORY AND REGULATORY HAZARDOUS WASTE
MANAGEMENT AUTHORITIES THEY POSSESS. EPA RECEIVED COMMENTS ON THIS
POINT, AND NOW BELIEVES THAT THIS CONSIDERATION MUST YIELD TO THE
CONCERN FOR CONSISTENCY AND UNIFORMITY IN THE MANIFEST SYSTEM, WHICH IS
THE HEART OF THE "CRADLE-TO-GRAVE" CONTROL SYSTEM OF RCRA, AND HAS
SIGNIFICANT CONSEQUENCES ON INTERSTATE COMMERCE. STATES NOT AUTHORIZED
TO RUN THE MANIFEST SYSTEM DURING INTERIM AUTHORIZATION SHOULD WORK TO
DEVELOP A MANIFEST SYSTEM AND ASSOCIATED GENERATOR AND TRANSPORTER
STANDARDS EQUIVALENT TO AND CONSISTENT WITH THE FEDERAL SYSTEM AS
REQUIRED FOR FINAL AUTHORIZATION.
IN ORDER TO OBTAIN INTERIM AUTHORIZATION, STATES ARE NOT REQUIRED TO
HAVE STATUTORY OR REGULATORY AUTHORITY OVER CERTAIN ASPECTS REGULATED
UNDER THE HAZARDOUS MATERIALS TRANSPORTATION ACT BY THE DEPARTMENT OF
TRANSPORTATION (DOT). HOWEVER, THIS AUTHORITY WILL BE REQUIRED FOR
FINAL AUTHORIZATION. THESE ASPECTS INCLUDE REQUIREMENTS FOR
ACCUMULATION OF WASTES IN CONTAINERS MEETING DOT STANDARDS PRIOR TO
SHIPMENT; PACKAGING, LABELING, MARKING AND PLACARDING OF WASTES; THE
FORWARDING OF THE MANIFEST OR SHIPPING DOCUMENT FOR SHIPMENTS SOLELY BY
RAILROAD OR SOLELY BY WATER (BULK SHIPMENTS ONLY); AND PROVISION OF THE
DOT PROPER SHIPPING NAME.
THIS APPROACH TO INTERIM AUTHORIZATION WAS TAKEN IN ORDER TO AVOID
THE POTENTIAL DISRUPTION OF EXISTING STATE PROGRAMS WHICH COULD OCCUR IF
ADOPTION OF THESE DOT PROVISIONS NECESSITATED HASTY LEGISLATIVE AND/OR
REGULATORY CHANGES. FOR INTERSTATE TRANSPORTATION OF HAZARDOUS WASTE
THESE DOT REQUIREMENTS OPERATE INDEPENDENTLY OF THE REQUIREMENTS THAT
ARE CONTAINED IN A STATE HAZARDOUS WASTE PROGRAM. THUS, A DEGREE OF
CONTROL OF HAZARDOUS WASTE AND PROTECTION OF HUMAN HEALTH AND THE
ENVIRONMENT SUBSTANTIALLY EQUIVALENT TO THE FEDERAL PROGRAM IS AFFORDED
IN OTHER STATES WITHOUT THE NEED FOR A STATE WITH INTERIM AUTHORIZATION
TO INCLUDE IN ITS PROGRAM THE AUTHORITY TO ADMINISTER (AND ENFORCE)
THESE REQUIREMENTS.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 103 OF 225
COSTLE DM ADMINISTRATOR
EPA
113602
REGULATIONS
/7/ EPA WILL ALSO PERMIT STATES TO OBTAIN INTERIM AUTHORIZATION EVEN
IF THEY LACK REGULATORY AUTHORITY OVER CERTAIN TYPES OF STORAGE,
TREATMENT, OR DISPOSAL FACILITIES AS LONG AS THOSE FACILITIES DO NOT
EXIST IN THE STATE AT THE TIME INTERIM AUTHORIZATION IS GRANTED. THIS
PROVISION RAISES THE POSSIBILITY THAT SUCH A FACILITY COULD BE OPENED
INTHE STATE DURING THE TIME OF INTERIM AUTHORIZATION AND OPERATE
UNREGULATED. HOWEVER, EPA BELIEVES THAT THIS WILL NOT PROVE TO BE A
PRACTICAL PROBLEM. IT WILL BE DIFFICULT TO CONSTRUCT AND OPEN LARGE OR
COMPLEX FACILITIES DURING THE 2 YEARS ALLOWED FOR INTERIM AUTHORIZATION,
AND ANYONE WHO DOES BUILD SUCH A FACILITY WILL DO SO IN THE KNOWLEDGE
THAT HE OR SHE WILL BE SUBJECT TO RCRA'S FULL PERMIT REQUIREMENTS WHEN
INTERIM AUTHORIZATION EXPIRES, AND MAY LOSE HIS OR HER INVESTMENT IF HE
OR SHE DOES NOT QUALIFY UNDER THEM.
IN OTHER WORDS, THE ASPECTS OF DOT'S PROGRAM LISTED ABOVE MUST BE
COMPLIED WITH FOR THE INTERSTATE TRANSPORTATION OF HAZARDOUS WASTE IN A
STATE WITH INTERIM AUTHORIZATION AUTHORIZED TO OPERATE THE MANIFEST
SYSTEM. IN SUCH A CASE, THE UNIVERSE OF WASTES SUBJECT TO THESE
REQUIREMENTS IS THE FEDERAL UNIVERSE, AS DEFINED BY 40 CFR PART 261.
ANY GENERATOR OR TRANSPORTER PROPOSING TO SHIP A WASTE INTERSTATE WHICH
IS HAZARDOUS UNDER PART 261 MUST COMPLY WITH DOT'S REQUIREMENTS.
SHIPMENTS OF HAZARDOUS WASTE BY INTRASTATE MOTOR CARRIERS ARE NOT
SUBJECT TO DOT REQUIREMENTS DURING INTERIM AUTHORIZATION, ALTHOUGH THE
MAJORITY OF STATES HAVE ADOPTED DOT REQUIREMENTS IN THEIR MOTOR VEHICLE
CODES OR BY OTHER MEANS. FOR THE REASONS STATED ABOVE, EPA HAS CHOSEN
NOT TO SET MINIMUM REQUIREMENTS RESPECTING THESE STANDARDS AS A
CONDITION FOR INTERIM AUTHORIZATION. HOWEVER, SINCE THE TRANSPORTATION
OF HAZARDOUS WASTE BY INTERSTATE CARRIERS WILL BE SUBJECT TO DOT
REGULATIONS, EPA ENCOURAGES STATES TO ADOPT TRANSPORTATION REQUIREMENTS
WHICH ARE CONSISTENT WITH DOT'S REGULATIONS.
IN ADDITION, EPA WILL CONTINUE TO REQUIRE REPORTS DIRECTLY TO IT OF
INTERNATIONAL SHIPMENTS OF HAZARDOUS WASTES. THIS IS UNIQUELY AN ISSUE
THAT CONCERNS THE NATIONAL GOVERNMENT, AND REQUIRING REPORTS DIRECTLY TO
EPA IS THE SIMPLEST PROCEDURAL MECHANISM FOR ENSURING THAT THERE IS A
CENTRAL NATIONAL REPOSITORY OF INFORMATION ABOUT THOSE SHIPMENTS.
SECTIONS 123.128(E) AND 123.129 (HAZARDOUS WASTE TREATMENT, STORAGE,
AND DISPOSAL FACILITIES). DURING INTERIM AUTHORIZATION A STATE MUST
HAVE AUTHORITY TO REGULATE ALL TYPES OF HAZARDOUS WASTE TREATMENT,
STORAGE AND DISPOSAL FACILITIES EXCEPT THOSE THAT DO NOT EXIST IN THE
STATE ON THE DATE OF INTERIM AUTHORIZATION. THIS IS A SIGNIFICANTLY
STRICTER REQUIREMENT THAN THE ONE THAT APPEARED IN THE JUNE 14, 1979
PROPOSAL.
WHEN PHASE II IS CONCERNED, A STATE MUST HAVE IN EFFECT A PERMIT
PROGRAM SUBSTANTIALLY EQUIVALENT TO THE FEDERAL HAZARDOUS WASTE PERMIT
PROGRAM, INCLUDING SUBSTANTIALLY EQUIVALENT PUBLIC PARTICIPATION
PROVISIONS.
EPA CANNOT ACCEPT THE SUGGESTION THAT A SYSTEM OF PERMITS BY RULE
MORE EXTENSIVE THAN THE ONE IN THE FEDERAL SYSTEM BE ACCEPTED FOR
PURPOSES OF INTERIM AUTHORIZATION. THE SAFETY AND CONTROL OF HWM
FACILITIES, PARTICULARLY IN THE EARLY YEARS OF THE PROGRAM, WILL BE TO A
GREAT EXTENT A MATTER OF SITE-SPECIFIC JUDGEMENT REQUIRING SITE-SPECIFIC
EXAMINATIONS.
AS DISCUSSED IN MORE DETAIL EARLIER IN THIS PREAMBLE (PART 122,
SUBPART B -- ADDITIONAL REQUIREMENTS FOR HAZARDOUS WASTE PROGRAMS), THE
AGENCY HAS INTEGRATED THE OVERLAPPING REQUIREMENTS OF RCRA AND SDWA
RELATIVE TO THE UNDERGROUND INJECTION OF HAZARDOUS WASTE INTO WELLS.
BRIEFLY, THE APPROACH IS AS FOLLOWS: EXISTING WELLS THAT RECEIVE
HAZARDOUS WASTE WILL BE CONSIDERED TO BE "HAZARDOUS WASTE MANAGEMENT
FACILITIES." DURING THE "INTERIM STATUS" PERIOD THEIR OWNERS OR
OPERATORS WILL BE REQUIRED TO COMPLY WITH CERTAIN REQUIREMENTS OF 40 CFR
PARTS 122 AND 265, INCLUDING SUCH REQUIREMENTS AS FILING OF
NOTIFICATIONS AND PART A PERMIT APPLICATIONS, AND COMPLIANCE WITH THE
MANIFEST SYSTEM AND INTERIM STATUS STANDARDS. AS DISCUSSED IN THE
PREAMBLE TO PART 122, SUBPART B, EPA ALSO WILL MAKE PROVISIONS FOR
ISSUING INTERIM RCRA PERMITS TO CLASS I WELLS HANDLING HAZARDOUS WASTE.
BECAUSE THIS REGULATION UNDER RCRA OF WELLS INJECTING HAZARDOUS WASTE
IS SOMEWHAT DIFFERENT THAN WHAT EPA PROPOSED, EPA WILL GIVE A STATE THE
OPTION OF WHETHER TO COVER SUCH WELLS UNDER PHASES I AND II OF ITS STATE
HAZARDOUS WASTE PROGRAM UNTIL THE STATE HAS AN APPROVED UIC PROGRAM
(SECTION 123.128(E)(8)). IF A STATE CHOOSES NOT TO REGULATE WELLS
INJECTING HAZARDOUS WASTE UNDER ITS RCRA PROGRAM, EPA WILL ENFORCE THE
INTERIM STATUS STANDARDS FOR SUCH WELLS AND WILL, ONCE THE PERMITTING
STANDARDS FOR CLASS I WELLS INJECTING HAZARDOUS WASTE ARE IN PLACE,
ISSUE PERMITS TO OWNERS AND OPERATORS REQUESTING THEM.
RELATIONSHIP OF STATE PROGRAMS TO EACH OTHER AND TO THE FEDERAL
PROGRAM UNDER INTERIM AUTHORIZATION. AS NOTED ABOVE, EPA HAS
SIGNIFICANTLY REVISED ITS APPROACH TO INTERIM AUTHORIZATION SINCE THE
TIME OF PROPOSAL, TIGHTENED THE TEST FOR DETERMINING "SUBSTANTIAL
EQUIVALENCE" AND FORBIDDEN PARTIAL PROGRAMS. THESE CHANGES SHOULD
GREATLY REDUCE THE CASES IN WHICH DIFFERENCES BETWEEN STATE PROGRAMS,
AND BETWEEN STATE PROGRAMS AND THE FEDERAL PROGRAM, LEAD TO
INCONSISTENCIES WHICH REQUIRE RESOLUTION. HOWEVER, EPA HAS IDENTIFIED
SEVERAL TYPES OF INCONSISTENCIES WHICH MAY STILL ARISE. THE INDEPENDENT
APPLICATION OF DOT REGULATIONS RESPECTING INTERSTATE SHIPMENTS
(INCLUDING REQUIREMENTS FOR THE IDENTIFICATION OF WASTE AND USE OF THE
MANIFEST) SHOULD HELP MITIGATE THE IMPACTS OF THE FIRST THREE POTENTIAL
PROGLEMS DISCUSSED BELOW.
1. INCONSISTENCIES DUE TO DIFFERENCES IN THE "UNIVERSE" OF WASTES
FROM STATE TO STATE. TWO TYPES OF INCONSISTENCIES CAN ARISE HERE.
FIRST, A WASTE COULD MOVE FROM A STATE WHERE IT IS NOT DESIGNATED OR
LISTED AS HAZARDOUS INTO ONE WHERE IT IS DESIGNATED OR LISTED. BOTH
UNDER SECTION 3009 OF RCRA AND UNDER THE GENERAL STATE POLICE POWER,
EACH STATE HAS THE RIGHT TO CONTROL THE MOVEMENT AND DISPOSAL WITHIN ITS
BOUNDARIES OF WASTES WHICH IT CONSIDERS HAZARDOUS. ACCORDINGLY, UNDER
NEW SECTION 123.130(B), WHEN WASTES MOVE FROM A STATE WHERE THEY ARE NOT
LISTED OR DESIGNATED TO ONE IN WHICH THEY ARE, THEY BECOME SUBJECT TO
THE TREATMENT, STORAGE AND DISPOSAL REQUIREMENTS AND THE TRANSPORTER
REQUIREMENTS OF THAT SECOND STATE.
ALSO, A WASTE COULD MOVE FROM A STATE WHERE IT IS LISTED INTO ONE
WHERE IT IS NOT DESIGNATED OR LISTED. THIS IS BY FAR THE MOST TROUBLING
OF THE FOUR TYPES OF INCONSISTENCIES. EPA INTENDS TO ADMINISTER THE
PROGRAM SO AS TO MINIMIZE THE CHANCES THAT THIS SITUATION WILL IN FACT
OCCUR. SPECIFICALLY, EPA WILL NOT APPROVE STATE PROGRAMS WHICH
AFFIRMATIVELY APPEAR TO INCLUDE A SMALLER "UNIVERSE" OF WASTES THAN THE
FEDERAL PROGRAM COVERS. HOWEVER, SINCE DURING INTERIM AUTHORIZATION EPA
WILL ALLOW STATE PROGRAMS TO VARY FROM THE FEDERAL PROGRAM IN THEIR
LISTING CHARACTERISTICS AND TEST METHODS, IT MAY BE THAT A STATE PROGRAM
WILL TURN OUT TO BE UNDERINCLUSIVE EVEN THOUGH THAT WAS NOT CLEAR AT THE
TIME OF APPROVAL. BY THE SAME REASONSING USED ABOVE, THE WASTES BECOME
UNREGULATED (EXCEPT AS GENERAL STATE LAW MAY PROVIDE) UPON MOVING INTO
THE SECOND STATE AND, UNDER SECTION 123.130(A), MAY BE MANAGED AS
PERMITTED BY THE LAWS OF THE STATE INTO WHICH IT HAS BEEN TRANSPORTED.
IN ADDITION, SECTION 123.128(B) (6) REQUIRES STATE MANIFEST SYSTEMS TO
INSURE THAT ALL INTERSTATE SHIPMENTS OF HAZARDOUS WASTE BE DESIGNATED
FOR DELIVERY TO FACILITIES AUTHORIZED TO OPERATE UNDER AN APPROVED STATE
PROGRAM.
CLEARLY, UNDER THIS APPROACH STATES COULD BECOME PREFERRED "DUMPING
GROUNDS" FOR WASTES WHICH THEY DID NOT REGULATE, BUT NEIGHBORING STATES
DID. HOWEVER, THE POSSIBILITY OF THAT OCCURRING CANNOT BE AVOIDED UNDER
ANY APPROACH WHICH GIVES EFFECT TO THE "SUBSTANTIAL EQUIVALENCE"
LANGUAGE OF RCRA. /7/
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 104 OF 225
COSTLE DM ADMINISTRATOR
EPA
113603
REGULATIONS
2. THE STATE HAS INTERIM AUTHORIZATION BUT EPA IS RUNNING THE
MANIFEST SYSTEM. IN THIS CASE, THE FEDERAL MANIFEST SYSTEM AND FEDERAL
STANDARDS FOR GENERATORS AND TRANSPORTERS WILL BE ENFORCED IN THE STATE.
THE UNIVERSE OF WASTE SUBJECT TO THESE FEDERAL REQUIREMENTS, HOWEVER,
WILL BE THE UNIVERSE OF WASTES COVERED BY THE STATE PROGRAM. IT WILL
NOT BE THE FEDERAL UNIVERSE AS DEFINED IN 40 CFR PART 261. HOWEVER,
DOT'S REQUIREMENTS ARE APPLICABLE TO INTERSTATE SHIPMENTS OF HAZARDOUS
WASTES IN THE FEDERAL UNIVERSE AS DEFINED IN 40 CFR PART 261.
3. A STATE HAS PHASE I AUTHORIZATION DURING PHASE II. THIS STATE OF
AFFAIRS, AS EXPLAINED ABOVE, CAN ONLY LAST FOR 6 MONTHS. DURING THIS
PERIOD, EPA COULD ADMINISTER AND ENFORCE THE FEDERAL PERMIT PROGRAM IN
THE STATE, HOWEVER, IT IS MOST UNLIKELY THAT EPA WOULD OPERATE AN ACTIVE
PERMIT PROGRAM THAT WOULD DUPLICATE STATE REGULATION OF EXISTING
FACILITIES. INSTEAD, EPA WOULD ALMOST CERTAINLY CONFINE ITSELF TO
ISSUING PERMITS TO NEW FACILITIES WHICH NEED THEM TO BEGIN CONSTRUCTION.
SECTIONS 123.128(F) AND (G) (ENFORCEMENT AND COMPLIANCE EVALUATION).
THE PROPOSAL PROVIDED THAT STATES APPLYING FOR INTERIM AUTHORIZATION HAD
TO SHOW, IN THEIR APPLICATION, SUBSTANTIAL COMPLIANCE WITH PROPOSED
SECTION 123.10, THE ENFORCEMENT REQUIREMENTS OF SUBPART A, AND
COMPLIANCE WITH THE REST OF SUBPART A, INCLUDING THE COMPLIANCE
EVALUATION REQUIREMENTS OF PROPOSED SECTION 123.9. REQUIREMENTS FOR
ENFORCEMENT AUTHORITY AND COMPLIANCE EVALUATION PROGRAMS FOR INTERIM
AUTHORIZATION ARE NOW CONTAINED IN SECTION 123.128(F) AND(G).
FOR COMPLIANCE EVALUATION, THE REQUIREMENTS FOR INTERIM AUTHORIZATION
ARE SUBSTANTIVELY THE SAME AS THOSE FOUND IN SECTION 123.8, REQUIREMENTS
FOR FINAL AUTHORIZATION, INCLUDING REQUIREMENTS FOR PUBLIC
PARTICIPATION.
FOR ENFORCEMENT ACTION AUTHORITY, SUBSTANTIAL EQUIVALENCE HAS BEEN
DEFINED WITH SPECIFICITY. A STATE CAN QUALIFY FOR INTERIM AUTHORIZATION
WITH LESSER AMOUNTS OF FINES THAN REQUIRED FOR FINAL AUTHORIZATION OR
UNDER THE FEDERAL PBROGRAM. A STATE MUST HAVE THE AUTHORITY TO IMPOSE
CIVIL OR CRIMINAL SANCTIONS, BUT NEED NOT HAVE AUTHORITY TO IMPRISON.
UPON REVIEW OF EXISTING STATE LEGISLATION, EPA FOUND THAT A SIGNIFICANT
NUMBER OF STATE PROGRAMS WOULD NOT QUALIFY FOR INTERIM AUTHORIZATION IF
REQUIRED TO HAVE THE SAME ENFORCEMENT PROVISIONS AS THE FEDERAL PROGRAM.
IN KEEPING WITH THE CONGRESSIONAL INTENT THAT THE INTERIM AUTHORIZATION
PERIOD PROVIDE TIME FOR STATES WITH LESS STRINGENT PROGRAMS TO REACH
EQUIVALENCE RATHER THAN HAVE THE PROGRAM HALTED IN ITS DEVELOPMENT, EPA
HAS DETERMINED THAT AN ADEQUATE DEGREE OF PROTECTION OF HUMAN HEALTH AND
THE ENVIRONMENT WILL BE PROVIDED BY THESE REQUIREMENTS, WHILE ALLOWING
AS MANY STATES AS POSSIBLE TO OPERATE THE PROGRAM.
ONCE A STATE RECEIVES INTERIM AUTHORIZATION, EPA RETAINS OVERSIGHT
AUTHORITY (SECTION 3008) CONCERNING THE ACTIVITIES REGULATED BY THE
STATE. THE LANGUAGE IN SECTION 3006(C) THAT A STATE PROGRAM WITH
INTERIM AUTHORIZATION "OPERATES IN LIEU OF THE FEDERAL PROGRAM" DOES NOT
MEAN, AS SUGGESTED BY ONE COMMENTER, THAT EPA HAS NO AUTHORITY TO
ENFORCE THE STATE'S PROGRAM EITHER IN CONJUNCTION WITH OR THROUGH THE
STATE. SECTION 3008(A)(2) SPECIFICALLY AUTHORIZES FEDERAL ENFORCEMENT
OF SUCH A STATE PROGRAM.
SECTION 3008(A) PROVIDES THAT EPA MAY ENFORCE "ANY REQUIREMENT OF
THIS SUBTITLE" AFTER, AS ONE COMMENTER NOTED, EPA HAS GIVEN NOTICE TO
THE AUTHORIZED STATE. THE PREAMBLE TO THE JUNE 14, 1979 PROPOSAL AT
PAGE 34259 STATED THAT IN AN AUTHORIZED STATE EPA MIGHT "ENFORCE
DIRECTLY AGAINST ANY FACILITY OR ACTIVITY VIOLATING THE FEDERAL
STANDARDS" UNDER THE AUTHORITY OF SECTION 3008(A) (2). IT SHOULD BE
UNDERSTOOD THAT IN A STATE WITH INTERIM OR FINAL AUTHORIZATION, THE
"REQUIREMENTS OF THE SUBTITLE" WHICH EPA WILL ENFORCE UNDER SECTION3008
ARE THE STATE PROGRAM REQUIREMENTS.
THIS SECTION IS THE SAME AS SECTION 123.10 AND IS DISCUSSED IN THE
PREAMBLE TO THAT SECTION.
THIS SECTION IS SELF-EXPLANATORY. THE QUESTION OF COORDINATION IS
FULLY DISCUSSED IN TE PREAMBLE TO PART 124.
THE MAJOR ISSUE RAISED BY THIS SECTION -- WHEN EPA WILL USE ITS
AUTHORITY TO REVOKE A STATE PERMIT -- HAS BEEN DISCUSSED EARLIER.
BEYOND THIS, QUITE A NUMBEROF COMMENTS WERE RECEIVED ON THE
DEFINITION OF "MAJOR" FACILITY PERMIT AND HOW EPA WILL REVIEW STATE
PERMITS. AS THE PREAMBLE TO PART 122 EXPLAINS, A PRECISE DEFINITION OF
A "MAJOR" FACILITY IS NOT POSSIBLE AT THIS STATE OF THE PROGRAM.
INSTEAD, THE DEFINITION WILL BE ESTABLISHED YEAR BY YEAR AND STATE BY
STATE IN GUIDANCE. HOWEVER, EPA DOES EXPECT THAT THE NUMBERS CHOSEN
WILL RESULT IN REVIEW OF APPROXIMATELY TEN PERCENT OF THE PERMIT
APPLICATIONS FOR A STATE.
ONE COMMENTER SUGGESTED THATEPA LIMIT ITS REVIEW OF PERMITS TO
RECEIVING "SUMMARIES" AND THAT IT REVIEW THE ACTUAL APPLICATION ONLY
UPON SPECIFIC REQUEST. THERE MAY BE CASES WHERE SUCH AN APPROACH WOULD
BE APPROPRIATE. HOWEVER, A "SUMMARY" (WHICH THE REGULATIONS MAY REQUIRE
IN ANY EVENT IN THE FORM OF A FACT SHEET) WOULD NOT BE ENOUGH FOR A
THOROUGH REVIEW OF AN IMPORTANT PERMIT. ACCORDINGLY EPA BELIEVES THAT
TRANSMITTAL OF MORE DOCUMENTS FOR CERTAIN TYPES OF PERMITS SHOULD BE
PROVIDED FOR IN THE MOA.
IN THE JUNE 14, 1979 PROPOSAL, THE APPROVAL PROCESS FOR INTERIM
AUTHORIZATION WAS IDENTICAL TO THE APPROVAL PROCESS FOR FINAL
AUTHORIZATION. IN THIS FINAL REGULATION EPA HAS SHORTENED THE APPROVAL
PROCESS FOR INTERIM AUTHORIZATION. THERE ARE TWO REASONS FOR THIS
CHANGE. FIRST, SECTION 3006(B) EXPLICITLY MANDATES, FOR FINAL
AUTHORIZATION, SPECIFIC PROCEDURES WHICH A STATE SEEKING FINAL
AUTHORIZATION AND EPA GRANTIN AUTHORIZATION MUST FOLLOW. SECTION
3006(C), THE PROVISION FOR INTERIM AUTHORIZATION, CONTAINS NONE OF THESE
PROCEDURAL REQUIREMENTS.
SECOND, EXTENSIVE PROCEDURAL REQUIREMENTS FOR INTERIM AUTHORIZATION
APPROVALS WOULD BE INAPPROPRIATE GIVEN THE SHORT DURATION OF INTERIM
AUTHORIZATION, AND WOULD CONTRAVENE THE AGENCY'S DESIRE TO MINIMIZE THE
POTENTIAL FOR DUPLICATE FEDERAL AND STATE HAZARDOUS WASTE PROGRAMS.
PROTRACTED APPROVAL PROCEDURES ENHANCE THE POTENTIAL FOR DUPLICATE STATE
AND FEDERAL PROGRAMS WHILE AN APPLICATION IS BEING PROCESSED.
THE AGENCY IS, HOWEVER, COMMITTED TO EXTENSIVE PUBLIC PARTICIPATION
IN THE INTERIM AUTHORIZATION PROCESS AND IS MINDFUL OF THE NEED FOR
REASONED DECISIONMAKING IN GRANTING INTERIM AUTHORIZATION. THEREFORE,
THE APPROVAL PROCESS FOR INTERIM AUTHORIZATION WILL CONTAIN ALL THE
ELEMENTS OF THE APPROVAL PROCESS FOR FINAL AUTHORIZATION EXCEPT FOR THE
REQUIREMENT THAT THE STATE PUBLISH ITS NOTICE OF INTENT TO APPLY FOR
INTERIM AUTHORIZATION AND THE REQUIREMENT THAT THE ADMINISTRATOR MAKE A
TENTATIVE DETERMINATION TO APPROVE THE STATE PROGRAM.
UNLIKE SECTION 3006(B), SECTION 3006(C) DOES NOT INCLUDE A STATUTORY
REVIEW PERIOD (I.E., A PERIOD OF TIME ALLOTTED TO EPA FOR REVIEW OF A
COMPLETE PROGRAM SUBMISSION). IN LIGHT OF THE AGENCY'S DESIRE TO
MINIMIZE THE POSSIBILITY OF DUPLICATE STATE AND FEDERAL PROGRAMS, THE
AGENCY IS COMMITTED TO EXPEDITED REVIEW OF STATE SUBMISSIONS FOR INTERIM
AUTHORIZATION.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 105 OF 225
COSTLE DM ADMINISTRATOR
EPA
113604
REGULATIONS
THUS, THE ADMINISTRATOR WILL ISSUE NOTICE IN THE FEDERAL REGISTER OF
A HEARING ON THE STATE'S SUBMISSION AND WILL MAKE A FINAL DETERMINATION
WHETHER OR NOT TO APPROVE A STATE PROGRAM AS QUICKLY AS POSSIBLE, BUT IN
NO CASE LATER THAN 120 DAYS AFTER RECEIPT OF A COMPLETE PROGRAM
SUBMISSION.
THIS SECTIONIS DERIVED FROM SECTION 123.14. IT INCLUDES AS AN
ADDITIONAL CRITERION FOR WITHDRAWAL OF INTERIM AUTHORIZATION STATE
FAILURE TO MEET THE SCHEDULE FOR OR ACCOMPLISH THE ADDITIONS OR
REVISIONS TO ITS PROGRAM SET FORTH IN ITS AUTHORIZATION PLAN. THIS
CRITERION IS REQUIRED BECAUSE INTERIM AUTHORIZATION WAS SPECIFICALLY
ESTABLISHED TO FACILITATE STATE ASSUMPTION OF A FULLY EQUIVALENT
HAZARDOUS WASTE PROGRAM.
THE INTENT OF CONGRESS WAS CLEARLY TO GRANT INTERIM AUTHORIZATION TO
STATES WHICH WOULD STRIVE TO ACHIEVE THE REQUIREMENTS FOR FINAL
AUTHORIZATION IN THE TWENTY-FOUR MONTH PERIOD PROVIDED IN SECTION 3006
(C). THE AUTHORIZATION PLAN SETS FORTH THE NECESSARY STEPS THE STATE
MUST TAKE TO ACHIEVE THESE REQUIREMENTS IN THIS PERIOD. IF IT APPEARS
THAT A STATE WILL NOT ACHIEVE THESE REQUIREMENTS AND CLEARLY WILL NOT
RECEIVE FINAL AUTHORIZATION, IT MAY BE LESS DISRUPTIVE TO WITHDRAW THE
PROGRAM THAN TO WAIT FOR IT TO LAPSE AUTOMATICALLY. HENCE, THIS ADDED
CRITERION FOR PROGRAM WITHDRAWAL.
THIS SECTION IS NEW. IT PROVIDES THAT A STATE PROGRAM SHALL
TERMINATE AND REVERT TO EPA IF EITHER THE STATE FAILS TO SUBMIT THE
AMENDED APPLICATION REQUIRED FOR PHASE II INTERIM AUTHORIZATION AS
REQUIRED BY SECTION 122.122(C)(4) OR THE REGIONAL ADMINISTRATOR
DETERMINES, IN ACCORDANCE WITH PROCEDURES SET FORTH AT SECTION 123.136,
THAT THE AMENDED STATE PROGRAM SUBMISSION DOES NOT MEET THE REQUIREMENTS
FOR INTERIM AUTHORIZATION CORRESPONDING TO PHASE II. THERE ARE NO
SIMILAR PROVISIONS IN OTHER SUBPARTS OF THIS PART.
THIS AUTOMATIC TERMINATION AND REVERSION PROVISION IS NECESSARY HERE
BECAUSE AS DESCRIBED ABOVE, THE TWO PHASES OF INTERIM AUTHORIZATION ARE
INTEGRAL PARTS OF A STATE HAZARDOUS WASTE PROGRAM. EPA DOES NOT INTEND
TO PROVIDE AUTHORIZATION FOR ONLY ONE PHASE. THEREFORE, STATES WITH
INTERIM AUTHORIZATION FOR PHASE I WILL BE EXPECTED TO SEEK INTERIM
AUTHORIZATION FOR PHASE II; AND STATES WHICH RECEIVED PHASE I INTERIM
AUTHORIZATION BUT DO NOT APPLY FOR INTERIM AUTHORIZATION FOR PHASE II
SHALL NOT RETAIN PHASE I INTERIM AUTHORIZATION BEYOND THE 6 MONTH PERIOD
FOLLOWING THE EFFECTIVE DATE OF PHASE II.
THIS RULEMAKING DOES NOT SET FORTH DETAILED SPECIFICATIONS FOR HOW
THE REVERSION OF A STATE PROGRAM TO EPA WILL ACTUALLY OCCUR. EPA WILL
ADDRESS THAT SUBJECT IN A FUTURE RULEMAKING IF THAT APPEARS NECESSARY.
IF SUCH A REVERSION TAKES PLACE, IT IS EPA'S INTENTION TO ASSURE THAT
FACILITIES WHICH HAD RECEIVED INTERIM STATUS UNDER THE FEDERAL PROGRAM
BEFORE A STATE RECEIVED INTERIM AUTHORIZATION, RETAIN INTERIM STATUS IF
THE PROGRAM REVERTS TO EPA AND THE STATE HAS NOT ISSUED THE FACILITY A
RCRA PERMIT DURING INTERIM AUTHORIZATION. FACILITIES WHICH HAVE
RECEIVED STATE=ISSUED RCRA PERMITS DURING PHASE II OF INTERIM
AUTHORIZATION WILL RETAIN THEIR PERMITTED STATUS UNTIL THAT STATE PERMIT
EXPIRES OR IS TERMINATED. IT IS ALSO EPA'S INTENTION TO ASSURE THAT
FACILITIES WHICH HAD THE EQUIVALENT OF INTERIM STATUS UNDER THE STATE
PROGRAM WILL BE ELIGIBLE FOR FEDERAL INTERIM STATUS.
BY THE TIME OF FINAL AUTHORIZATION UNDER SUBPART B OF THIS PART THE
NATIONAL PROGRAM FOR CONTROLLING HAZARDOUS WASTES SHOULD BE
SUBSTANTIALLY MORE SETTLED THAN IT WILL BE DURING INTERIM AUTHORIZATION.
IN ADDITION, THE STATUTORY SCHEME GOVERNING FINAL AUTHORIZATION IS MORE
CLEAR-CUT. FOR BOTH THESE REASONS, THIS SUBPART IS SIGNIFICANTLY LESS
INTRICATE THAN SUBPART F AND REQUIRES LESS PREAMBLE DISCUSSION.
THIS IS AN INTRODUCTORY SECTION. THIS SECTION POINTS OUT THAT
INTERIM AUTHORIZATION IS NOT A PRECONDITION TO FINAL AUTHORIZATION.
STATES MAY APPLY FOR FINAL AUTHORIZATION AT ANY TIME AFTERPROMULGATION
OF THE PHASE II REGULATIONS WHETHER OR NOT THEY HAVE APPLIED FOR OR
RECEIVED INTERIM AUTHORIZATION.
AS THE DISCUSSION EARLIER IN THIS PREAMBLE STATES, CONGRESS INTENDED
FOR STATE PROGRAMS RECEIVING FINAL AUTHORIZATION TO BECOME FULLY PART OF
AN INTEGRATED NATIONAL PROGRAM TO CONTROL HAZARDOUS WASTES. SECTION
3006(B) OF RCRA PROVIDES THAT STATE PROGRAMS CAN ONLY BE APPROVED IF
THEY ARE "EQUIVALENT TO" AND "CONSISTENT WITH" THE FEDERAL PROGRAM. EPA
HAS THEREFORE TIGHTENED CONSIDERABLY THE REQUIREMENTS FOR APPROVAL OF
FINAL PROGRAMS OVER THOSE FOR APPROVAL OF INTERIM PROGRAMS, ALTHOUGH, AS
THE EARLIER DISCUSSION ALSO STATES, IT HAS NOT GONE AS FAR AS SOME
COMMENTERS SUGGESTED.
THIS SECTION PROVIDES THAT ANY ASPECT OF A STATE PROGRAM WHICH
OPERATES AS A BAN ON THE INTERSTATE MOVEMENT OF HAZARDOUS WASTE IS
AUTOMATICALLY INCONSISTENT. A RECENT COURT DECISION, CITY OF
PHILADELPHIA V. NEW JERSEY, 437 U.S. 617 (1978), HAS HELD THAT SUCH
STATUTES ARE UNCONSTITUTIONAL BECAUSE THEY VIOLATE THE INTERSTATE
COMMERCE CLAUSE, AND EPA BELIEVES THAT DECISION IS CORRECT. HOWEVER,
SINCE THE TEXT OF RCRA SPEAKS ONLY TO THE "INCONSISTENCY" OF STATE
PROGRAM SUBMISSIONS, NOT OF STATE LAWS GENERALLY, THIS PROVISION IS
RESTRICTED TO THE SAME EXTENT.
EPA BELIEVES THAT STATE REQUIREMENTS WHICH FORBID THE CONSTRUCTION OR
OPERATION OF HAZARDOUS WASTE DISPOSAL FACILITIES COULD BE SUBJECT TO
ATTACK BY THE SAME REASONING ADOPTED BY THE COURTS THAT HAVE STRUCK DOWN
TRANSPORTATION BANS. A STATE THAT REFUSES ENTIRELY TO ALLOW A NECESSARY
PART OF NATIONAL COMMERCE -- THE DISPOSAL OF HAZARDOUS WASTES -- TO TAKE
PLACE WITHIN ITS BOUNDARIES IS IMPEDING THE FLOW OF INTERSTATE COMMERCE
JUST AS MUCH AS A STATE THAT REFUSES TO ALLOW THE TRANSPORTATION OF
THOSE WASTES. THE INTERSTATE COMMERCE CONCERNS INVOLVED HERE ARE
UNDERLINED BY THE ESTABLISHMENT THROUGH RCRA OF A NATIONAL REGULATORY
SCHEME, EVEN THOUGH THAT SCHEME IS NOT ON ITS FACE PREEMPTIVE.
ACCORDINGLY, STATE PROGRAMS WHICH CONTAIN PROVISIONS THAT PROHIBIT
TREATMENT, STORAGE OR DISPOSAL OF HAZARDOUS WASTE WITHIN THE STATE, WILL
BE DEEMED INCONSISTENT IF THE PROHIBITION HAS NO BASIS IN HUMAN HEALTH
OR ENVIRONMENTAL PROTECTION.
FINALLY, THE SECTION PROVIDES THAT IF THE MANIFEST SYSTEM DOES NOT
MEET THE REQUIREMENTS OF PART 123, THE STATE PROGRAM WILL BE DEEMED
INCONSISTENT. SINCE THE MANIFEST IS A DOCUMENT THAT MAY ACTUALLY TRAVEL
FROM STATE TO STATE, IT IS IMPORTANT THAT THE VARIOUS STATES BE VERY
SIMILAR IN THIS REGARD.
A NUMBER OF COMMENTS RAISED AS A "CONSISTENCY" ISSUE THAT STATE
PROGRAMS MIGHT BE TOO LAX IN SOME RESPECT SO THAT A STATE WOULD BECOME A
"WASTE HAVEN" FOR A REGION. THOUGH THE TERMS "CONSISTENT" AND
"EQUIVALENT" DO HAVE A CERTAIN DEGREE OF OVERLAPPING CONTENT, IN GENERAL
EPA, DURING FINAL AUTHORIZATION, WILL DEAL WITH PROBLEMS OF STATE
PROGRAMS THAT CONFLICT WITH EACH OTHER OR IMPOSE UNNECESSARY PROCEDURAL
BURDENS, AS A "CONSISTENCY" ISSUE. QUESTIONS AS TO WHETHER THE PROGRAMS
ARE STRONG ENOUGH WILL BE DEALT WITH AS A MATTER OF "EQUIVALENCE." THOSE
MATTERS ARE DISCUSSED BELOW. TO SUMMARIZE, EPA HAS NOT REQUIRED STATES
TO ADOPT EPA'S PRECISE REGULATIONS, BUT HAS REQUIRED THEM TO ACHIEVE THE
SAME EFFECT, AND HAS BEEN PARTICULARLY CAREFUL TO REQUIRE VERY CLOSE
SIMILARITY WHERE PROBLEMS OF DISSIMILAT STATE REQUIREMENTS MIGHT ARISE.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 106 OF 225
COSTLE DM ADMINISTRATOR
EPA
113605
REGULATIONS
THIS SECTION REQUIRES STATES TO CONTROL THE SAME "UNIVERSE" OF WASTES
AS THE FEDERAL PROGRAM. THIS REQUIREMENT WILL AVOID THE PROBLEMS OF
DIFFERING LISTS POINTED OUT EARLIER. OF COURSE, A STATE IS FREE TO
CONTROL ADDITIONAL WASTES IF IT DESIRES BUT, AS EXPLAINED EARLIER, THIS
CONTROL WILL NOT EXTEND BEYOND THE STATE BOUNDARIES. IN OTHER WORDS,
UNLESS OTHER STATES HAVE EQUALLY MORE INCLUSIVE PROGRAMS, THE EXTRA
WASTES LISTED WILL NOT BE CONSIDERED HAZARDOUS IN OTHER STATES.
AS EXPLAINED ABOVE, EPA PLACES PARTICULAR WEIGHT ON CONSISTENCY
BETWEEN THE MANIFEST SYSTEMS IN DIFFERENT STATES. THE JUNE 14, 1979,
PROPOSAL PROVIDED THAT STATES MUST USE THE MANIFEST FORMAT PUBLISHED BY
EPA AND THIS REQUIREMENT REMAINS IN THE FINAL RULE. THIS MEANS THAT A
STATE'S MANIFEST FORM OR FORMAT MUST CONTAIN THE SAME INFORMATION AS
REQUIRED FOR THE FEDERAL MANIFEST FORMAT. EPA HAS DECIDED TO RETAIN A
FLEXIBLE APPROACH TO THE MANIFEST SYSTEM AND HAS NOT PUBLISHED A
MANIFEST FORM, FOR REASONS EXPLAINED IN THE PREAMBLE TO THE SECTION 3002
REGULATIONS (45 FR 12728-29 (FEBRUARY 26, 1980)).
WHILE EPA DECIDED TO MINIMIZE BURDENSOME PAPERWORK BY ONLY REQUIRING
EXCEPTIONS REPORTS BY GENERATORS (40 CFR SECTION 262.42), THE AGENCY
RECOGNIZES THAT SEVERAL STATES VIEW TRACKING OF INDIVIDUAL MANIFESTS AS
AN INTEGRAL AND NECESSARY PART OF THEIR ENFORCEMENT PROGRAM. INDEED,
SEVERAL STATES HAVE SUCH A TRACKING SYSTEM WHICH TYPICALLY REQUIRES
GENERATORS AND FACILITY OPERATORS TO SEND COPIES OF ALL MANIFESTS TO THE
STATE. THE AGENCY VIEWS THE CONTINUATION OF SUCH A TRACKING SYSTEM BY A
STATE AS ALLOWABLE UNDER SECTION 3009 OF RCRA, PROVIDED THE STATE
ADHERES TO ALL FEDERAL MANIFEST SYSTEM REQUIREMENTS (E.G., THE GENERATOR
REMAINS RESPONSIBLE FOR EXCEPTION REPORTING).
AS STATED INTHE PREAMBLE TO SECTION 123.128(B)-(D), CERTAIN ASPECTS
OF THE DOT HAZARDOUS MATERIALS PROGRAM, THOUGH NOT REQUIRED TO BE PART
OF A STATE'S INTERIM AUTHORIZATION PROGRAM, MUST BE REGULATED AS PART OF
A STATE'S FINAL AUTHORIZATION PROGRAM. THESE ASPECTS INCLUDE
REQUIREMENTS FOR: ACCUMULATION OF WASTES IN CONTAINERS MEETING DOT
STANDARDS PRIOR TO SHIPMENT; PACKAGING, LABELING, MARKING AND
PLACARDING OF WASTES; THE FORWARDING OF THE MANIFEST OR SHIPPING
DOCUMENT FOR SHIPMENTS SOLELY BY RAILROAD OR SOLELY BY WATER (BULK
SHIPMENTS ONLY); AND PROVISION OF THE DOT PROPER SHIPPING NAME. THE
AGENCY BELIEVES THAT, FOR FINAL AUTHORIZATION, A STATE MUST INCORPORATE
THESE DOT REQUIREMENTS INTO ITS PROGRAM, AS EPA HAS IN 40 CFR PART 262.
THE OVERRIDING CONCERN BEHID THIS REQUIREMENT IS THE NEED FOR
REGULATORY SIMPLICITY AND ELIMINATION OF CONFUSION BY SPLIT
ADMINISTRATION, I.E., GENERATORS AND TRANSPORTERS WILL BE ABLE TO LOOK
SOLELY TO THE STATE HAZARDOUS WASTE MANAGEMENT AGENCY FOR ALL
REQUIREMENTS WITH WHICH THEY MUST COMPLY.
THIS SECTION CONTAINS STANDARDS FOR FACILITIES THAT WILL BE
INCORPORATED IN PERMITS FOR THESE FACILITIES. MOST OF THESE
REQUIREMENTS WILL BE PROMULGATED IN PHASE II AND THUS THIS SECTION MAY
WELL NEED REVISION AT THAT TIME TO FILL IN DETAILS.
THIS SECTION REQUIRES THE STATE DIRECTOR, AFTER A STATE HAS RECEIVED
FINAL AUTHORIZATION, TO REVIEW AND CHANGE AS NECESSARY ANY PERMITS
ISSUED BY THE STATE UNDER PHASE II OF INTERIM AUTHORIZATION. WHERE SUCH
PERMITS ARE ISSUED UNDER PHASE II, THE DIRECTOR SHOULD CONSIDER GIVING
THEM A SHORTER TERM THAN THE 10-YEAR MAXIMUM NOW SPECIFIED IN ORDER TO
MAKE THIS RE-EXAMINATION EASIER.
THE SIGNIFIANT ISSUES RAISED BY THIS SECTION HAVE BEEN DISCUSSED
EARLIER IN THIS PREAMBLE.
RCRA SPECIFICALLY PROVIDES THE APPROVAL PROCESS FOR FINAL
AUTHORIZATION OF STATE RCRA PROGRAMS, WHICH IS DIFFERENT FROM THAT FOR
INTERIM AUTHORIZATION. THE APPROVAL PROCESS HAS BEEN SIMPLIFIED FOR
INTERIM, BUT REMAINS VITRUALLY IDENTICAL TO THE PROPOSAL FOR FINAL
AUTHORIZATION. ONE CHANGE, IN RESPONSE TO A PUBLIC COMMENT, IS THAT THE
FINAL RULE DOES NOT REQUIRE THE STATE TO PROVIDE A COPY OF THE ACTUAL
TRANSCRIPT OF THE PUBLIC HEARING, BUT CAN INSTEAD PROVIDE A SUMMARY OF
THE PROCEEDINGS.
MANY OF THE REQUIREMENTS OF THIS SUBPART HAVE BEEN MOVED INTO SUBPART
A FOR THE REASONS EXPLAINED ABOVE. PROPOSED SECTIONS 123.52, 123.57,
AND 123.60 HAVE BEEN MOVED INTO SECTIONS 123.4, 123.7, AND 123.13,
RESPECTIVELY. IN ADDITION, THE REQUIREMENTS FOR STATE PROGRAMS LISTED
IN SECTION 123.7 ARE CHANGED TO THE EXTENT CHANGES HAVE BEEN MADE IN
PARTS 122 AND 124. ALL STATES MUST BAN CERTAIN CLASS IV WELLS AS
PROVIDED IN SECTION 122.36. TREATMENT OF OTHER CLASS IV WELLS HAS BEEN
RESERVED AS DISCUSSED IN THE PREAMBLE TO THAT SECTION.
SECTION 123.51(D) -- THIS PARAGRAPH (PROPOSED SECTION 123.51 (F)(1))
GENERATED A CERTAIN AMOUNT OF CONFUSION. EPA DOES NOT WANT A STATE TO
DEVELOP A DETAILED PROGRAM COVERING CLASSES OF WELLS WHICH DO NOT EXIST
IN THE STATE AND WHICH ARE NOT LIKELY TO COME INTO BEING (EXCEPT THAT
THE STATE MUST HAVE A PROGRAM TO BAN CALSS IV WELLS). HOWEVER, THE
AGENCY IS CONCERNED THAT STATE PROGRAMS CONTROL ALL TYPES OF INJECTIONS
AND NOT INADVERTENTLY AUTHORIZE NEW INJECTIONS NOT PREVIOUSLY FOUND IN
THE STATE. THEREFORE, STATES WITH NO WELLS IN A CERTAIN CLASS (OTHER
THAN CLASS IV) HAVE THE FOLLOWING OPTIONS:
(1) WITHOUT DISTINGUISHING BETWEEN CLASSES OF WELLS, TREAT ALL
INJECTIONS AS THOUGH THEY FALL INTO EPA'S CLASS I.
(2) PROHIBIT INJECTIONS IN NON-EXISTENT CLASSES EXPLICITLY.
(3) WHEN THE STATE CAN DEMONSTRATE THAT INJECTIONS ARE NOT AUTHORIZED
IN THE ABSENCE OF RULES, AND NO RULES ARE ESTABLISHED OVER A PARTICULAR
CLASS OF WELL, EPA WILL ACCEPT THIS AS AN IMPLICIT PROHIBITION. A
CERTIFICATION TO THIS EFFECT FROM THE STATE ATTORNEY GENERAL IS
NECESSARY, HOWEVER. THE STATE MUST CONTROL CLASS IV WELLS TO THE EXTENT
REQURIED BY SECTIONS 122.36 AND 122.45 EVEN THOUGH THE STATE MAY NOT
CURRENTLY HAVE ANY CLASS IV WELLS.
THIS SECTION WAS PROPOSED AS SECTION 123.54. STATE LAW MUST PROHIBIT
ALL WELL INJECTIONS WHICH ARE NOT AUTHORIZED EITHER BY RULE OR BY
PERMIT, AND MUST PROVIDE THE AUTHORITY TO REGULATE ALL WELL INJECTIONS
CURRENTLY IN PLACE IN THE STATE, EITHER BY RULE OR BY PERMIT. BEFORE
ANY TYPE OF WELL INJECTION NOT CURRENTLY IN PLACE CAN BE AUTHORIZED, THE
STATE PROGRAM MUST BE AMENDED TO COVER THAT TYPE OF INJECTION.
THE SPECIFIC REQUIREMENT IN THIS SECTION HAS BEEN DROPPED. THE
STATE'S AUTHORITY TO PROHIBIT OR AUTHORIZE WELL INJECTIONS WITHOUT A
PERMIT MUST BE DISCUSSED, HOWEVER, IN THE ATTORNEY GENERAL'S STATEMENT
UNDER SECTION 123.5.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 107 OF 225
COSTLE DM ADMINISTRATOR
EPA
113606
REGULATIONS
THIS SECTION HAS BEEN MOVED TO SECTION 122.18.
SOME COMMENTERS SUGGESTED THAT EPA WAS TOO STRINGENT IN ITS PUBLIC
NOTICE REQUIREMENTS IN PROPOSED SECTION 123.58(A), NOW SECTION
123.54(A). THEY SUGGESTED THAT STATES SHOULD BE GIVEN GREATER
FELXIBILITY TO HANDLE PUBLIC NOTICE OF THEIR PROGRAMS PRIOR TO
SUBMISSION. EPA STRONGLY ENCOURAGES PUBLIC INVOLVEMENT IN ALL OF ITS
PROGRAMS AND HAS NOT REDUCED THESE REQUIREMENTS BELOW WHAT WAS PROPOSED.
HOWEVER, SECTION 123.54(C) HAS BEEN REWRITTEN TO CLARIFY THE
CIRCUMSTANCES UNDER WHICH THE REGIONAL ADMINISTRATOR MAY DECLINE TO HOLD
A PUBLIC HEARING ON A PROGRAM APPROVAL.
THIS SUBPART REFLECTS THE REQUIREMENTS OF EPA'S REVISED NPDES
REGULATIONS. (44 FR 32854, JUNE 7, 1978). NO SUBSTANTIVE CHANGES HAVE
BEEN MADE. SECTIONS 123.74 AND 123.75 (PROPOSED SECTIONS 123.77 AND
123.78) HAVE BEEN REORGANIZED FOR GREATER CLARITY.
PROPOSED SECTIONS 123.75 HAS BEEN DROPPED BECASUE THE REQUIREMENTS OF
THAT SECTION THAT STATES HAVE ADEQUATE AUTHORITY TO INSPECT, MONITOR,
ENTER, AND REQUIRE REPORTS, ARE DUPLICATIVE OF OTHER REQUIREMENTS OF
THESE REGULATIONS. SEE SECTIONS 122.7 (APPLICABLE PERMIT CONDITIONS),
122.11 (MONITORING REQUIREMCNTS), AND 123.8 (REQUIREMENTS FOR COMPLIANCE
EVALUATION PROGRAMS).
THIS SUBPART HAS BEEN REORGANIZED TO BE MORE COMPREHENSIBLE.
ONE COMMENTER SUGGESTED THAT SECTION 123.91(C) BE MODIFIED TO ALLOW
EPA APPROVAL OF STATE 404 PROGRAMS LACKING JURISDICTION OVER ALL THE
WATERS WITHIN THE STATE FALLING UNDER THE DEFINITION OF "STATE REGULATED
WATERS." EPA HAS THOROUGHLY STUDIED BOTH THE EXPRESS LANGUAGE OF CWA AND
THE LEGISLATIVE HISTORY OF THE ACT REGARDING THE BREADTH OF STATE
SECTION 404 PROGRAMS. BOTH CLEARLY INDICATE THAT STATE SECTION 404
PROGRAMS MUST REGULATE DISCHARGES OF DREDGED OR FILL MATERIALS INTO ALL
WATERS OF THE UNITED STATES EXCEPT THOSE EXPRESSLY RESERVED TO THE CORPS
OF ENGINEERS UNDER SECTION 404(G)(1) OF CWA. FOR THIS REASON, PARTIAL
PROGRAMS CANNOT BE APPROVED.
ONE COMMENTER ARGUES THAT SECTION 123.91(D) LIMITED THE SCOPE OF
STATE PROGRAMS TO REGULATION OF ONLY THOSE ACTIVITIES PERMITTED BY THE
STATE AFTER PROGRAM APPROVAL. EPA DISAGREES. SECTION 123.91(D) CLEARLY
ALLOWS APPROVED STATES TO ASSUME RESPONSIBILITY OVER EXISTING GENERAL
PERMITS ISSUED BY THE CORPS OF ENGINEERS. THE MEMORANDUM OF AGREEMENT
BETWEEN THE STATE AND THE SECRETARY, UNDER SECTION 123.99, WILL BE THE
VEHICLE FOR ESTABLISHING WHICH CORPS ISSUED PERMITS THE STATE WILL
ADMINISTER AND ENFORCE.
THIS SECTION WAS PROPOSED AS SECTION 123.107.
A NUMBER OF COMMENTERS OBJECTED TO THE DESCRIPTION OF ACTIVITIES
EXEMPT FROM THE REQUIREMENT OF HAVING TO OBTAIN A PERMIT, ON THE GROUNDS
THAT THE EXEMPTIONS HAVE BEEN DRAWN SO NARROWLY THAT THE 404 PROGRAM
INTRUDES ILLEGALLY INTO ACTIVITIES RESERVED TO THE 208 PROGRAM. EPA
BELIEVES THESE OBJECTIONS ARE BASED ON A MISUNDERSTANDING OF THE
RELATIONSHIP BETWEEN SECTIONS 404 AND 208. IT IS CLEAR FROM THE
STATUTORY SCHEME AND LEGISLATIVE HISTORY THAT SECTIONS 402 AND 404 MUST
REACH ALL POINT SOURCE DISCHARGES EXCEPT THOSE EXPLICITLY EXEMPTED IN
SECTIONS 404(F), 404(R), OR 402(L). SECTION 208 WAS INTENDED TO
SUPPLEMENT THOSE PROGRAMS BY COVERING MAJOR NON-POINT SOURCES OF
POLLUTION, BY ENSURING COORDINATION BETWEEN POINT AND NON-POINT SOURCE
CONTROLS, BY COORDINATING TREATMENT FACILITIES, AND BY PREVENTING
POLLUTION AS WELL AS CONTROLLING IT. THUS, IT IS NOT CORRECT TO ASSUME
THAT MERELY BECAUSE AN ACTIVITY IS IDENTIFIED IN SECTION 208 IT IS A
NONPOINT SOURCE; SIMILARLY, THE BMP'S IN SECTION 404(F)(1)(E) ARE NOT
VALID MERELY BECAUSE THEY REACH POINT SOME PROBLEMS WHICH THE 208 PLANS
ALSO ADDRESS. SECTIONS 404 AND 208 SIMPLY DO NOT DEFINE DISTINCT
SPHERES OF INFLUENCE.
SECTION 123.92(A)(1) - SEVERAL COMMENTERS OBJECTED TO THE RESTRICTIVE
LANGUAGE OF SECTION 123.92(A)(1). THIS SUBPARAGRAPH HAS BEEN REWRITTEN
TO MORE CLEARLY SPECIFY THE ACTIVITIES WHICH ARE EXEMPTED FROM THE
SECTION 404 PERMIT REQUIREMENT INSTEAD OF FOCUSING ON THOSE ACTIVITIES
WHICH DO REQUIRE PERMITS, AS THE PURPOSE OF THIS SECTION IS TO IDENTIFY
THOSE ACTIVITIES WHICH DO NOT REQUIRE PERMITS.
THE DEFINITIONS OF "PLOWING." "SEEDING," "CULTIVATING," "MINOR
DRAINAGE" AND "HARVESTING" (PROPOSED SECTION 122.3(E)) HAVE BEEN MOVED
INTO THIS PARAGRAPH FOR CONVENIENCE. THE TERMS APPEAR ONLY IN THIS
PARAGRAPH. COMMENTS RECEIVED ON THE DEFINITIONS OF CULTIVATING,
HARVESTING, MINOR DRAINAGE, AND PLOWING ARE AS FOLLOWS:
EPA AGREES WITH THE COMMENTER WHO RECOMMENDED THE DELETION OF THE
WORD "PLANTED" IN THE DEFINITION OF "CULTIVATING," AND HAS CHANGED THE
DEFINITION ACCORDINGLY TO MAKE IT CLEAR THAT CULTIVATING NATURALLY
OCCURRING CORPS, SUCH AS SALT HAY, MAY BE EXEMPT AS LONG AS THE OTHER
REQUIREMENTS ARE MET.
THE AGENCY HAS INCLUDED ESTABLISHED RANCH LANDS IN THE DEFINITION OF
"HARVESTING" TO BETTER COINCIDE WITH STATUTORY LANGUAGE.
A LARGE NUMBER OF COMMENTERS OBJECTED TO THE DEFINITION OF "MINOR
DRAINAGE." MOST COMPLAINED THAT, BY LIMITING MINOR DRAINAGE TO UPLAND
DRAINS (AND CONNECTIONS OF SUCH DRAINS TO WATERS OF THE UNITED STATES),
THE REGULATION "EXEMPTED" ONLY THOSE ACTIVITIES WHICH WERE ALREADY
OUTSIDE THE SCOPE OF SECTION 404. THESE COMMENTERS CITED SEVERAL
PASSAGES IN THE LEGISLATIVE HISTORY TO SUPPORT THEIR SRGUMENT THAT SOME
DRAINAGE WITHIN WETLANDS WAS ALSO MEANT TO BE EXEMPTED. THESE
COMMENTERS NOTED THAT THE "RECAPTURE" PROVISION IN SECTION 404(F)(2)
WOULD SERVE AS ASSURANCE THAT THE EXEMPTED DRAINAGE WOULD HAVE ONLY
MINIMAL EFFECTS. THE COMMENTERS ALSO OBSERVED THAT THE PROPOSED
DEFINITION WOULD REQUIRE A DRAINAGE PROPONENT TO DETERMINE THE PRESENCE
OR ABSENCE OF WETLANDS BEFORE HE OR SHE WOULD KNOW WHETHER A PERMIT IS
NEEDED. A FEW COMMENTERS, CITING THE POTENTIAL FOR ABUSE FROM WETLANDS
DRAINAGE, RECOMMENDED THAT THE PROPOSED DEFINTION BE RETAINED.
THE DEFINITION OF MINOR DRAINAGE IS NOT AN EASY PROBLEM TO SOLVE.
THE LEGISLATIVE HISTORY CONTAINS NUMEROUS, INCONSISTENT REFERENCES TO
MINOR DRAINAGE AND TO OTHER SECTION 404(F)(1) EXEMPTIONS. SOME PORTIONS
OF THE LEGISLATIVE HISTORY CLEARLY SUPPORT THE POSITION TAKEN IN THE
PROPOSAL, SUCH AS THE STATEMENT THAT THE PROVISION FOR MINOR DRAINAGE
MERELY RECOGNIZES THAT UPLAND DRAINAGE DOES NOT INVOLVE THE DISCHARGE OF
DREDGED AND FILL MATERIAL IN WATERS OF THE UNITED STATES, AND THEREFORE
DOES NOT EVER NEED A PERMIT. HOWEVER, OTHER PASSAGES IN THE LEGISLATIVE
HISTORY SUGGEST THAT THE MINOR DRAINAGE PROVISION IS INTENDED TO AID
FARMERS AND FORESTERS WHO ARE ACTIVELY FARMING AN AREA WHICH MAY
TECHNICALLY BE WATERS OF THE UNITED STATES, AT LEAST WHERE THESE
ACTIVITIES WILL NOT HAVE A SIGNIFICANT IMPACT ON THE AQUATIC ECOSYSTEM.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 108 OF 225
COSTLE DM ADMINISTRATOR
EPA
113607
REGULATIONS
AFTER A CAREFUL REVIEW OF THE ENTIRE LEGISLATIVE HISTORY AND
CONSIDERATION OF THE NUMEROUS COMMENTS, EPA HAS CONCLUDED THAT IT WOULD
BE APPROPRIATE TO DEFINE "MINOR DRAINAGE" TO INCLUDE CERTAIN CLEARLY
DEFINED DRAINAGE ACTIVITIES IN WETLANDS WHICH ARE PART OF ON-GOING
AGRICULTURAL AND SILVICULTURAL OPERATIONS AND WHICH HAVE MINIMAL ADVERSE
EFFECTS, WHERE PERMITS ARE AN UNNECESSARY BURDEN. SUBPARAGRAPHS (II),
(III), AND (IV) OF THE NEW DEFINITION REFLECT THIS REVISION. IT SHOULD
BE STRESSED THAT EACH OF THESE PROVISIONS APPLIES TO ACTIVITIES THAT ARE
PART OF AN ON-GOING FARMING OR FORESTRY OPERATION; THEY DO NOT EXEMPT
ACTIVITIES WHICH CONVERT WETLANDS TO NON-WETLANDS OR WHICH BRING
WETLANDS INTO FARMING USE. THE LISTED ACTIVITIES WILL HAVE MINIMAL
ADVERSE EFFECTS PARTLY BECAUSE THEY INVOLVE LIMITED, REVERSIBLE
ALTERATIONS TO THE HYDROLOGICAL REGIME.
SUBPARAGRAPH (II) REFERS TO ACTIVITIES INCIDENTAL TO THE PLANTING,
CULTIVATING, PROTECTING, OR HARVESTING OF RICE, CRANBERRIES OF OTHER
WETLAND CROP SPECIES, IN FARM OR FOREST AREAS IN ESTABLISHED USE FOR
SUCH WETLAND CROP PRODUCTION. THIS WILL ALLOW A FARMER TO TEMPORARILY
DEWATER THE AREA FOR A PARTICULAR STEP, SUCH AS PLANTING, AS LONG AS THE
AREA IS KEPT IN WETLAND PLANT PRODUCTION (WITH OR WITHOUT ROTATION WITH
OTHER CROPS WHERE SUCH ROTATION IS A NORMAL PRACTICE). THE PHRASE
"WETLAND CROP SPECIES," IN THE DEFINITION OF MINOR DRAINAGE, MUST BE
READ IN CONNECTION WITH THE PHRASE "FOOD, FIBER, AND FOREST PRODUCTS" IN
SECTION 123.92(A)(1)(I). THUS, IT DOES NOT INCLUDE PEAT AND SIMILAR
MATERIALS EXTRACTED OR MINED FROM THE WETLAND SUBSTRATE, EVEN IF SUCH
MATERIALS ARE DERIVED FROM PLANTS WHICH ALSO YIELD FOOD OR FIBER OR TREE
PRODUCTS.
SUBPARAGRAPH (III) ALSO RECOGNIZES THE PARTICULAR SITUATION OF RICE
AND CRANBERRY (AND POSSIBLY OTHER FARM OR FROST CROP) GROWERS, WHOSE
MANIPULATION OF WATER LEVELS MAY INVOLVE THE DISCHARGE OF FILL MATERIAL.
SUBPARAGRAPH (IV) RESPONDS TO THE CONCERNS OF FARMERS AND FORESTERS
WHO POINTED OUT THAT STORMS AND FLOODS OCCASIONALLY DEPOSIT SILT BARS IN
PRE-EXISTING DRAINAGE CHANNELS IN ESTABLISHED CROP LANDS; THESE BARS
BLOCK THE NORMAL DRAINAGE AND OFTEN THREATEN CROPS WHICH ARE NOT ADAPTED
TO THE NEW FLOODING REGIME. SUCH BLOCKAGES MAY BE DUE TO STORMS,
FLOODS, BEAVER DAMS, AND OTHER SUCH "EVENTS." WE HAVE INCLUDED A
REQUIREMENT THAT SUCH BLOCKAGES BE REMOVED WITHIN ONE YEAR OF PLACEMENT
TO BE ELIGIBLE FOR THE EXEMPTION. THIS SHOULD ENSURE THAT THIS
EXEMPTION WILL NOT BE USED TO DRAIN WETLANDS WHICH HAPPEN TO HAVE BEEN
CREATED BY FLUVIAL ACTION OVER A PERIOD OF TIME.
EPA CONSIDERED ADDING A PROVISION TO EXEMPT DRAINAGE OF SMALL,
ISOLATED, OCCASIONALLY WET AREAS WHERE SUCH WET AREAS ARE SURROUNDED BY
LANDS IN ESTABLISHED FARMING USE. EPA CONCLUDED FOR A NUMBER OF REASONS
THAT IT WOULD BE UNNECESSARY OR UNWISE TO INCLUDE THIS PROVISION IN THE
DEFINITION OF MINOR DRAINAGE.
FIRST, MANY OF THESE SMALL, ISOLATED WET AREAS MAY NOT BE WATERS OF
THE UNITED STATES EITHER BECAUSE THEY ARE NOT WET ENOUGH TO BE
"WETLANDS" UNDER SECTION 122.3 OR BECAUSE, EVEN IF WETLANDS, THEIR
DESTRUCTION OR DEGRADATION WOULD NOT HAVE ANY EFFECT ON INTERSTATE
COMMERCE, INCLUDING AN "EXEMPTION" FOR SUCH AREAS MIGHT CREATE THE
ERRONEOUS IMPRESSION THAT, BUT FOR THE EXECPTION AND SUBJECT TO THE
RECAPTURE PROVISIONS OF SECTION 404(F)(2), EACH PUDDLE AND DAMP SPOT
WOULD NEED A PERMIT. THERE IS, OF COURSE, NO SUCH REQUIREMENT UNLESS
THERE IS A DISCHARGE INTO WATERS OF THE UNITED STATES.
SECOND, IN THE CASE WHERE WATERS OF THE UNITED STATES ARE INVOLVED,
SUCH DRAINAGE WOULD GENERALLY BE COVERED BY AN EXISTING NATIONWIDE
GENERAL PERMIT ISSUED BY THE CORPS OF ENGINEERS. STATES MAY ARRANGE
WITH THE SECRETARY OF THE ARMY TO TAKE OVER THE ADMINISTRATION OF SUCH
GENERAL PERMITS, FOR STATE REGULATED WATERS, UPON PROGRAM APPROVAL.
(SEE SECTION 123.91(D)). UNDER ONE CURRENT NATIONWIDE PERMIT (33 CFR
SECTION 323.4-2) DISCHARGES OF DREDGED AND FILL MATERIAL ARE AUTHORIZED,
SUBJECT TO CERTAIN CONDITIONS NOT LIKELY TO AFFECT FARMERS, IN: (1)
NON-TIDAL RIVERS, STREAMS AND THEIR IMPOUNDMENTS INCLUDING ADJACENT
WETLANDS THAT ARE LOCATED ABOVE THE HEADWATERS; (2) NATURAL LAKES,
INCLUDING THEIR ADJACENT WETLANDS, THAT ARE LESS THAN 10 ACRES INSURFACE
AREA AND THAT ARE FED OR DRAINED BY A RIVER OR STREAM ABOVE THE
HEADWATERS. IN THE ABSENCE OF ADJACENT WETLANDS THE SURFACE AREA OF A
LAKE SHALL BE DETERMINED AT THE ORDINARY HIGH WATER MARK; (3) NATURAL
LAKES, INCLUDING THEIR ADJACENT WETLANDS, THAT ARE LESS THAN 10 ACRES IN
SURFACE AREA AND THAT ARE ISOLATED AND NOT A PART OF A SURFACE RIVER OR
STREAM. IN THE ABSENCE OF ADJACENT WETLANDS, THE SURFACE AREA OF A LAKE
SHALL BE DETERMINED AT THE ORDINARY HIGH WATER MARK; AND (4) OTHER
NON-TIDAL WATERS OF THE UNITED STATES OTHER THAN ISOLATED LAKES LARGER
THAN 10 ACRES (SEE (3) ABOVE) THAT ARE NOT PART OF A SURFACE TRIBUTARY
SYSTEM TO INTERSTATE WATERS OR NAVIGABLE WATERS OF THE UNITED STATES
(SEE 33 CFR SECTION 323.2(A)(5)). THESE SMALL ISOLATED WETLANDS WOULD
BE COVERED BY THIS NATIONWIDE PERMIT.
THERE ARE STRONG POLICY GROUNDS FOR CONTINUING TO RELY ON THE GENERAL
PERMIT APPROACH FOR REGULATING SMALL, ISOLATED, WETLANDS IN REGIONS
WHERE AGRICULTURAL AND SILVICULTURAL ACTIVITIES PREDOMINATE. FOR
EXAMPLE, THE GENERAL PERMIT APPROACH ALLOWS A CERTAIN FLEXIBILITY, IN
THE EVENT THAT THE CUMULATIVE IMPACT OF SUCH DRAINAGE SHOULD BECOME MORE
SIGNIFICANT IN THE FUTURE. THIS FLEXIBILITY ARISES IN TWO WAYS. FIRST,
UNDER THE CORPS' REGULATIONS AND UNDER STATE PROGRAMS, THE PERMITTING
AUTHORITY HAS THE DISCRETION TO REQUIRE AN INDIVIDUAL PERMIT IN A
PARTICULAR CASE WHERE REQUIRED BY CONCERNS FOR THE AQUATIC ENVIRONMENT
(AS EXPRESSED IN THE SECTION 404(B)(1) GUIDELINES). FOR EXAMPLE, THE
PERMITTING AUTHORITY MAY CONCLUDE THAT IN A PARTICULAR AREA INDIVIDUAL
SCRUTINY IS NEEDED FOR THE DRAINAGE OF ISOLATED WETLANDS (E.G., PRAIRIE
POTHOLES) OF A CERTAIN SIZE OR TYPE. SECOND, GENERAL PERMITS ARE ISSUED
FOR FIXED TERMS, NOT EXCEEDING 5 YEARS, AND MUST BE RENEWED UPON
EXPIRATION IN ORDER TO CONTINUE IN EFFECT. THE OPPORTUNITY FOR PUBLIC
HEARING REQUIRED FOR SUCH RENEWAL WILL GIVE STATE ADMINISTRATORS,
FARMERS, AND OTHER INTERESTED CITIZENS AN OPPORTUNITY TO ASSESS THE
CONTINUED NEED FOR THE GENERAL PERMIT AND ITS CONDITIONS, BASED ON
ENVIRONMENTAL CONDITIONS, AND OTHER RELEVANT MATTERS. FOR INSTANCE, IN
THE PREVIOUS EXAMPLE, THE STATE DIRECTOR MAY CONCLUDE THAT THE LOSS OF
PRAIRIE POTHOLES HAS HAD SUCH AN IMPACT ON MIGRATORY WATERFOWL THAT
FUTURE DISCHARGES INTO ANY PRAIRIE POTHOLE SHOULD HAVE INDIVIDUAL
PERMITS.
EPA BELIEVES THAT THIS APPROACH COMPLIES WITH THE DIRECTION OF
CONGRESS TO GIVE THE STATES A ROLE IN THE IMPLEMENTATION OF THE 404
PROGRAM, RECOGNIZING THAT SOME STATES MAY CHOOSE A MORE PROTECTIVE
APPROACH THAN THE MINIMUM STANDARDS SET BY THE FEDERAL PROGRAM. AT THE
SAME TIME, THIS DEFINITION ASSURES THAT THE LEGITIMATE INTERESTS OF
FARMERS AND OTHER GROUPS, AS REFLECTED IN SECTION 404(F), ARE ALSO
PROTECTED.
SEVERAL COMMENTERS POINTED OUT THAT PLOWING IS A NORMAL FORESTRY AS
WELL AS FARMING ACTIVITY. WE HAVE AMENDED THE DEFINITION OF PLOWING TO
REFLECT THIS. OTHERS OBJECTED TO THE EXCLUSION FROM PLOWING OF
REDISTRIBUTION OF SURFACE MATERIALS BY GRADING, ON THE GROUNDS THAT
FILLING IN DEPRESSIONS IN IRRIGATED FIELDS MAY ACTUALLY BE A BMP.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 109 OF 225
COSTLE DM ADMINISTRATOR
EPA
113608
REGULATIONS
PLOWING, AS DEFINED, IS NOT A POINT SOURCE AND, UNDER SECTION 123.92,
WILL NOT REQUIRE A SECTION 404 PERMIT. HOWEVER, OTHER ACTIVITIES WHICH
INVOLVE THE REDISTRIBUTION OF SOIL OR OTHER SURFACE MATERIALS TO FILL IN
WATERS OF THE U.S. ARE NOT INCLUDED IN THIS DEFINITION AND MAY REQUIRE A
SECTION 404 PERMIT.
SEVERAL COMMENTERS QUESTIONED THE REQUIREMENT THAT PLOWING TAKE PLACE
ON "ESTABLISHED" FARM OR FOREST LANDS. THIS REQUIREMENT HAS BEEN
DELETED. HOWEVER, IT IS STILL NECESSARY TO DISTINGUISH ONGOING FARMING
AND FORESTRY ACTIVITIES, WHICH ARE EXEMPT UNDER SECTION 404(F)(1) OF
CWA, FROM ACTIVITIES WHICH CONVERT WATERS OF THE UNITED STATES TO A NEW
USE, WHICH, UNDER SECTION 404(F)(2), ARE NOT EXEMPT.
EPA BELIEVES THAT REDISTRIBUTION OF MATERIAL SHOULD BE SUBJECT TO THE
SCRUTINY OF THE PERMIT PROCESS WHEN IT RESULTS IN THE CONVERSION OF
WATERS OF THE UNITED STATES TO DRY LAND. IN APPROPRIATE CIRCUMSTANCES,
WITH APPROPRIATE CONDITIONS, SUCH REDISTRIBUTION MAY BE PERMITTED AS
PROVIDED IN THE SECTION 404(B)(1) GUIDELINES.
SECTION 123.92(A)(2) - SOME COMMENTERS FELT THAT SECTION
123.92(A)(2WAS TOO VAGUE OR TOO INFLEXIBLE FOR ALL EMERGENCY SITUATIONS,
EPA DISAGREES, AND HAS RETAINED THIS PARAGRAPH WITH ONLY MINOR
REVISIONS.
SECTION 123.92(A)(3) - A NUMBER OF COMMENTERS OBJECTED TO THE
LANGUAGE DEFINING THE EXEMPTION FOR THE CONNECTION OF IRRIGATION DITCHES
TO WATERS OF THE U.S. AS BEING TOO RESTRICTIVE. THE REVISED LANGUAGE
CLARIFIES THAT A PERMIT IS REQUIRED ONLY FOR THOSE CONNECTIONS THAT
INVOLVE CONSTRUCTION OF A WATER INTAKE STRUCUTRE WHICH RESULTS IN
SIGNIFICANT DISCERNABLE ALTERATIONS TO THE FLOW OR CIRCULATION OF WATERS
OF THE UNITED STATES. IT IS NOT THE INTENT OF EPA THAT SIMPLE
CONNECTIONS FALL UNDER THE PERMIT REQUIREMENT. FURTHERMORE,
CONSTRUCTION OF BANK PROTECTION FEATURES FOR DITCHES WHICH DO NOT REACH
INTO WATERS OF THE U.S. DO NOT NEED A PERMIT IN ANY CASE.
SECTION 123.92(A)(6) - NUMEROUS REVIEWERS OBJECTED TO THE BASELINE
BEST MANAGEMENT PRACTICES PROPOSED IN SECTION 123.107(A)(5) ON WHICH THE
ROAD CONSTRUCTION EXEMPTION IS BASED. OBJECTIONS CENTERED ON TWO
ISSUES: (A) WHETHER IT IS APPROPRAITE, OR INDEED LEGAL, FOR EPA TO
PRESCRIBE BY REGULATION A SET OF NATIONWIDE BMPS FOR STATE 404 PROGRAMS;
AND, (2) WHETHER THE BASELINE BMPS IN THE PROPOSAL IMPROPERLY CONTROL
ACTIVITIES THAT DO NOT RELATE TO ROAD CONSTRUCTION INVOLVING THE
DISCHARGE OF DREDGED AND FILL MATERIAL.
AS TO THE FIRST OF THESE OBJECTIONS, THE AGENCY, AFTER REVIEW OF THE
LEGISLATIVE HISTORY OF CWA SECTION 404(F)(1)(E), FINDS NO DIRECT OR
IMPLICIT GUIDANCE AS TO THE MEANS BY WHICH CONGRESS INTENDED THE BEST
MANAGEMENT PRACTICES REQUIREMENT TO BE IMPLEMENTED. OUR INTENT IN
SPECIFYING BASELINE BEST MANAGEMENT PRACTICES WAS, AND IS, TO IDENTIFY
BASIC MEASURES WHICH ARE NATIONALLY APPLICABLE AND WHICH CAN FORM A CORE
OR FRAMEWORK TO WHICH STATES MAY ADD MORE DETAILED AND LOCALLY
APPLICABLE BMPS WHICH THEY BELIEVE ARE NEEDED TO ASSURE THAT THE
ENVIRONMENTAL PROTECTION OBJECTIVES OF SECTION 404(F)(1)(E) ARE MET. WE
ALSO BELIEVE THAT AN EXPLICIT STATEMENT OF MINIMUM STANDARDS WILL AID
STATES IN PREPARING PROGRAM SUBMISSIONS FOR APPROVAL. FOR THIS REASON,
WE HAVE RETAINED THE APPROACH OF BASELINE BMPS IN SECTION 123.92(A)(6).
EPA HAS CAREFULLY CONSIDERED THE SECOND OBJECTION, RELATIVE TO THE
SCOPE OF THE SPECIFIC BMPS, IN LIGHT OF THE LEGISLATIVE HISTORY OF
SECTION 404(F)(1)(E), AND HAS CONCLUDED THAT IN SOME CASES THE PROPOSED
BMPS WERE TOO BROAD. THE AGENCY HAS, THEREFORE, REVISED THE LIST OF
BMPS IN ORDER TO FOCUS UPON ENVIRONMENTALLY PROTECTIVE MEASURES WHICHAE
DIRECTLY LINKED TO THE METHODOLOGY AND LOCATION OF DISCHARGES FOR ROAD
CONSTRUCTION. PROPOSED (I), (X), (XI), (XVI) AND (XVII) HAVE BEEN
DELETED, AND OTHER PROPOSED BMPS HAVE BEEN REVISED ACCOFDINGLY.
REVISIONS HAVE ALSO BEEN MADE TO MAINTAIN CONSISTENCY WITH THE CORPS OF
ENGINEERS. CONSISTENT WITH THESE OTHER CHANGES, WE HAVE ALSO ADDED
SEVERAL NEW BMPS, SECTIONS 123.92(A)(6)(V), (XI), AND (XII), NEW (V)
EMPHASIZES THE IMPORTANCE OF MINIMIZING DISTURBANCE WITHIN THE WATERS OF
THE UNITED STATES LYING ADJACENT TO ROAD CORRIDORS. THIS BMP IS
DESIGNED TO REDUCE THE ADVERSE IMPACTS OF ROAD CONSTRUCTION IN WATERS OF
THE UNITED STATES BY ENCOURAGING THE WIDESPREAD USE OF PROCEDURES WHICH
RESTRICT ROAD CONSTRUCTION TO THE ACTUAL CORRIDOR TO BE OCCUPIED BY THE
FINISHED ROAD. NEW (XI) AND(XII) ARE BOTH INCLUDED TO MAINTAIN
CONSISTENCY WITH THE BMPS APPLIED BY THE CORPS OF ENGINEERS. NEW (XI)
REQUIES THAT THE PUBLIC HEALTH AND WELFARE BE PROTECTED. NEW (XII)
REQUIRES THAT HEALTH AND ECONOMIC CONCERNS BE PROTECTED BY THE
PROTECTION OF SHELLFISH PRODUCTION AREAS. BELOW IS A BMP BY BMP
ANALYSIS OF COMMENTS RECEIVED AND CHANGES MADE IN EACH OF THE PROPOSED
BASELINE BMPS.
MOST OF THE COMMENTS ON PROPOSED (I) WERE NOT FAVORABLE, EXPRESSING
CONCERNS THAT THIS BMP WAS OUTSIDE EPA'S AUTHORITY, THAT THE ABSOLUTE
NATURE OF THE PROHIBITION MADE IT IMPRACTICABLE, AND THAT IT MIGHT EVEN
RESULT IN THE NEED FOR ADDITIONAL ROAD CONSTRUCTION. ALTHOUGH THE
AGENCY AGREES WITH THE COMMENTS FAVORABEL TO PROPOSED (I) THAT LOGGING
IN STREAMS MAY BE ENVIRONMENTALLY HARMFUL, PROPOSED (I) HAS BEEN DELETED
AS NOT BEING WITHIN THE PROPER SCOPE OF THIS SECTION.
ALTHOUGH MANY COMMENTERS APPROVES OF PROPOSED (II)(NOW I)), OTHERS
FELT THAT IT WAS ALREADY COVERED UNDER SECTION 208 OR THAT IT WAS TOO
INFLEXIBLE. IN RESPONSE TO THIS LATTER COMMENT, THE AGENCY HAS INCLUDED
MORE FACTORS TO BE USED IN DETERMINING WHAT RESTRICTIONS ARE FEASIBLE IN
ANY GIVEN CASE.
PROPOSED (III) (NOW II)) HAS BEN REVISED TO REQUIRE THE MINIMIZATION
OF DISCHARGES OF DREDGED OR FILL MATERIAL ONLY. THIS RESPONDS TO THOSE
COMMENTS WHICH STATED THAT THE BMP, AS PROPOSED, WAS NOT LIMITED TO
DREDGED OR FILL MATERIAL, AND WAS IMPRACTICAL.
MANY COMMENTERS AGREED WITH PROPOSED (IV) (NOW (III)), AND SO IT HAS
BEEN RETAINED AND ONLY SLIGHTLY REVISED. THE AGENCY DOES NOT AGREE WITH
THOSE COMMENTERS WHO FELT THAT ALLOWANCES FOR CERTAIN TYPES OF
DISCHARGES OR FOR EXTREME FLOWS SHOULD BE INCLUDED IN THIS BMP. THE
PHRASE "HIGH" FLOWS HAS BEEN CHANGED TO "FLOOD" FLOWS FOR CLARITY.
COMMENTS ON PROPOSED (V) (NOW (VII)) WERE GENERALLY FAVORABLE, AND SO
THIS BMP WAS RETAINED WITH MINOR REVISIONS. THE REVISION SPECIFY THAT
THE AFFECTED ACTIVITIES ARE RELATED TO ROAD CROSSINGS. THE AGENCY DOES
NOT FEEL THAT IT IS IMPRACTICAL, AS TWO COMMENTS STATED.
ALMOST ALL COMMENTERS AGREED WITH PROPOSED (VI) (NOW (X)) AND
PROPOSED (VII) (NOW (XIV)), AND THEY HAVE BEEN RETAINED UNCHANGED.
ALTHOUGH A FEW COMMENTERS FELT THAT PROPOSED (VIII) (NOW (IX)) NEEDED
MORE DEFINITION OR EXPLANATION, EPA HAS RETAINED THIS BMP UNCHANGED IN
LIGHT OF THE PREDOMINANCE OF FAVORABLE COMMENTS AND THE AVAILABILITY OF
INFORMATION COMPILED UNDER THE ENDANGERED SPECIES ACT FOR IMPLEMENTING
THIS REUQIREMENT.
MOST COMMENTERS AGREE WITH PROPOSED (IX) (NOW (IV)), AND IT HAS BEEN
RETAINED, ALTHOUGH LIMITED TO EROSION PREVENTION. SEVERAL COMMENTERS
SUGGESTED THAT THE WORD "PREVENT" BE REPLACED WITH "MINIMIZE" OR
"CONTROL", BUT THE AGENCY AND THE GREATER NUMBER OF COMMENTERS FELT THAT
THE ORIGINAL LANGUAGE IS BOTH PREFERABLE AND PRACTICABLE.
ALL COMMENTS ON PROPOSED (X) WERE NEGATIVE, WITH THE PRIMARY
OBJECTIONS BEING THAT IT EXCEEDED EPA'S AUTHORITY, WAS TOO RESTRICTIVE,
WAS COVERED UNDER SECTION 208 AND WAS INAPPROPRIATELY REGULATED UNDER
SECTION 404, AND WAS NOT PRACTICABLE. IN RESPONSE TO THESE COMMENTS,
PROPOSED (X) HAS BEEN DELETED.
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EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
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EPA
113609
REGULATIONS
ALOMST ALL OF THE COMMENTS ON PROPOSED (XI) WERE NEGATIVE. PRIMARY
CONCERNS WERE THAT IT EXCEEDED EPA'S SCOPE OF AUTHORITY WAS COVERED
UNDER SECTION 208 AND WAS INAPPROPRIATELY REGULATED UNDER SECTION 404,
WAS UNRELATED TO FARM OR FOREST ROAD CONSTRUCTION, WAS NOT PRACTICABLE,
AND WOULD NOT ALWAYS LEAD TO ENVIRONMENTALLY PROTECTIVE PRACTICES. ONLY
ONE COMMENTER FAVORED RETAINING THIS BMP. IN RESPONSE TO THESE
COMMENTS, PROPOSED (XI) HAS BEEN DELETED.
MANY COMMENTERS AGREED WITH PROPOSED (XII) (NOW (VI)) WHICH, IN
RESPONSE TO COMMENTS, HAS BEEN SLIGHTLY REVISED TO RELATE SPECIFICALLY
TO ROAD CROSSINGS. THE AGENCY DISAGREES WITH THE MANY COMMENTERS WHO
FELT THAT THIS BMP WAS NOT ADEQUATELY SPECIFIC TO SECTION 404 AND THAT
IT WAS BEST REGULTED UNDER SECTION 208 ONLY, SINCE IT IS CLEARLY
CONCERNED WITH POTENTIAL DISCHARGES INTO WATERS OF THE U.S.
PROPOSED (XIII) (NOW (VIII)) HAS BEEN REVISED IN RESPONSE TO A NUMBER
OF COMMENTS WHICH CRITICIZED THE ZONE OF VEGETATION AND THERMAL
POLLUTION REQUIREMENTS AS BEING INEFFECTIVE OR NOT NECESSARILY
PROTECTIVE OF THE ENVIRONMENT. THE OTHER MAJOR POINT OF CRITICISM IN
THE COMMENTS WAS THAT THIS IS NOT ADEQUATELY RELATED TO SECTION 404 AND
IS PROPERLY REGULATED UNDER SECTION 208. THE AGENCY DISAGREES WITH THIS
POINT OF VIEW, AND FEELS THAT THIS BMP MAY BE APPROPRIATE TO BOTH
SECTIONS 404 AND 208. A NUMBER OF COMMENTERS AGREED WITH THIS POSITION,
AND SO PROPOSED (XIII) HAS BEEN REVISED AND RETAINED.
A LARGE NUMBER OF COMMENTERS AGREED WITH PROPOSED (XIV) (NOW (XIII)),
WHICH HAS BEEN RETAINED UNCHANGED. CRITICAL COMMENTS GENERALLY STATED
THAT THIS BMP WAS NOT ADEQUATELY RELATED TO SECTION 404 OR THAT IT
EXCEEDS EPA'S AUTHORITY. EPA FEELS THAT NEITHER CRITICISM IS
WELL-FOUNDED SINCE THE REQUIREMENTS APPLIES TO DISCHARGES REGULATED
UNDER SECTION 404 AND ASSURES COMPLIANCE WITH TWO RELATED FEDERAL LAWS.
ALMOST ALL OF THE COMMENTERS AGREED WITH PROPOSED (XV) (NOW (XV)) AND
IT HAS BEEN RETAINED SUBSTANTIALLY AS PROPOSED. EPA FEELS THAT THERE IS
NO BASIS FOR THE COMMENTS THAT THIS REQUIREMENT IS IMPRACTICAL OR THAT
IT MIGHT RESULT IN ENVIRONMENTALLY HARMFUL ACTIVITIES.
NO FAVORABLE COMMENTS WERE RECEIVED REGARDING PROPOSED (XVI). THE
GENERAL CRITICISMS WERE THAT THIS BMP WAS NOT ADEQUATELY RELATED TO
SECTION 404 AND WAS MORE APPROPRIATELY REGULATED UNDER SECTION 208
AND/OR FIFRA, THAT IT WAS NOT PRACTICABLE, THAT IT WAS BEYOND THE SCOPE
OF EPA'S AUTHORITY, AND THAT THE LANGAUGE WAS NOT ADEQUATELY DEFINED OR
SPECIFIC. IN RESPONSE TO THESE COMMENTS PROPOSED (XVI) HAS BEEN
DELETED.
NO FAVORABLE COMMENTS WERE RECEIVED REGARDING PROPOSED (XVII).
OBJECTIONS TO THE BMP WERE GENERALLY THAT IT WAS COVERED UNDER SECTION
208 AND REGULATION UNDER SECTION 404 WAS NOT APPROPRIATE, THAT IT WAS
NOT PRACTICABLE OR NOT NECESSARY, THAT IT EXCEEDED EPA'S AUTHORITY, AND
THAT IT WAS UNRELATED TO FARM OR FOREST ROAD CONSTRUCTION. IN RESPONSE
TO THESE COMMENTS PROPOSED (XVII) HAS BEEN DELETED.
IN ADDITION TO THESE REVISIONS AND DELETIONS EPA HAS INCLUDED IN
THESE REGULATIONS THREE OTHER BASELINE BMPS. AS EXPLAINED ABOVE, NEW BMP
(V) IS INTENDED TO RESTRICT THE ADVERSE IMPACTS OF ROAD FILL
CONSTRUCTION ON WATERS OF THE U.S. TO THE SPECIFIC SITE OF THE FILL. IT
SPECIFICALLY AFFECTS THE MANNER IN WHICH DREDGED OR FILL MATERIAL IS
DISCHARGED FOR ROAD CONSTRUCTION, AND SO IS CLEARLY APPROPRIATE IN THIS
SECTION.
NEW (XI) AND (XII) ARE BOTH DESIGNED TO PROTECT THE PUBLIC HEALTH AND
WELFARE BY PROTECTING WATER SUPPLY AND FOOD PRODUCTION AREAS FROM
CONTAMINATION RESULTING FROM DISCHARGES ALLOWED UNDER THIS PARAGRAPH.
SECTION 123.92(D) - ONE COMMENTER EXPRESSED CONCERN THAT PROPOSED
SECTION 123.107(D), WHICH EXEMPTS FEDERAL PROJECTS QUALIFYING UNDER
SECTION 404(R) OF CWA FROMSTATE SECTION 404 PERMIT REQUIREMENTS, IS
CONTRARY TO THE PROVISIONS OF SECTION 404(T) OF CWA. SECTION 404(T)
PRESERVES FOR THE STATES THE RIGHT TO REGULATE DISCHARGES OF DREDGED OR
FILL MATERIAL IN THE NAVIGABLE WATERS OF THE STATE. TO CLARIFY THE
DISTINCTION BETWEEN SECTION 404(R) AND SECTION 404(T), THE PARAGRAPH HAS
BEEN CHANGED TO SPECIFY THAT PROJECTS QUALIFYING UNDER SECTION 404(R)
ARE EXEMPT FROM REGULATION UNDER THE FEDERAL OR STATE SECTION 404
PROGRAM, BUT MAY BE REGULATED UNDER OTHER STATE OR FEDERAL PROGRAMS.
THIS SECTION WAS PROPOSED AS SECTION 123.108.
SEVERAL COMMENTERS SUGGESTED THAT THE PERMIT APPLICATION CONTENT
REQUIREMENTS OF PROPOSED SECTION 123.108(C) BE SIMPLIFIED AND REDUCED.
THE AGENCY AGREES, AND IN REVISING THOSE REQUIREMENTS HAS ATTEMPTED TO
CLARIFY WHAT IS REQUIRED IN THE APPLICATION, REDUCE DUPLICATION, AND
LIMIT APPLICATION REQUIREMENTS TO THE INFORMATION WHICH IS NORMALLY
REQUIRED FOR EVALUATION OF PROPOSED PROJECTS.
A NUMBER OF COMMENTERS OBJECTED TO WHAT THEY CONSIDERED THE
UNREASONABLE ECONOMIC COSTS OF PROVIDING THE APPLICATION INFORMATION
REQUIRED BY THE PROPOSAL. WE BELIEVE THE SIMPLIFICATION AND REDUCTION
OF THOSE REQUIREMENTS WILL RESULT IN COMMENSURATE REDUCTION IN COSTS TO
THE APPLICANT. THE NOTE UNDER SECTION 123.94(C)(2)(V) ALSO SEEKS TO
ENSURE THAT THE LEVEL OF INFORMATION REQUIRED WILL BE APPROPRIATE TO THE
NECESSARY REVIEW, PURSUANT TO THE SECTION 404(B)(1) GUIDELINES, 40 CFR
SECTION 230.4(C) (AS PROPOSED IN 44 FR 54222, SEPTEMBER 18, 1979).
EPA HAS REVISED THE SECTION ON EMERGENCIES (PROPOSED SECTION 123.111)
TO ENSURE THAT PROCEDURES AND REQUIREMENTS RELATING TO DISCHARGES OF
DREDGED AND FILL MATERIAL WILL BE WAIVED ONLY TO THE EXTENT NECESSARY TO
MEET EMERGENCIES. THE PROVISION STILL ALLOWS THE DIRECTOR THE NECESSARY
FLEXIBILITY TO RESPOND TO SITUATIONS WHICH WOULD RESULT IN AN
UNACCEPTABLE HAZARD TO LIFE OR SEVERE LOSS OF PROPERTY IF CORRECTIVE
ACTION IS NOT UNDERTAKEN DURING THE USUAL PROCESSING PERIOD. AT THE
SAME TIME, THE REVISED LANGUAGE ASSURES THE PUBLICH'S RIGHT TO
PARTICIPATE AT THE EARLIEST FEASIBLE OPPORTUNITY.
THIS SECTION CONTAINS THE STANDARD PERMIT CONDITIONS WHICH THE STATE
DIRECTOR SHALL INCLUDE IN ALL STATE 404 PERMITS. THE PERMITTEE NOW MUST
BE REQUIRED TO MAINTAIN THE AUTHORIZED WORK AREA AS DESCRIBED IN THE
PERMIT IN ORDER TO PREVENT SUBSEQUENT VIOLATIONS OF CWA STANDARDS DUE TO
PREVIOUSLY AUTHORIZED ACTIVITIES. IN ADDITION EVERY PERMIT MUST SPECIFY
THAT ONLY ACTIVITIES SPECIFICALLY IDENTIFIED AND AUTHORIZED IN THE
PERMIT ARE AUTHORIZED ACTIVITIES. THIS MAINTAINS CONSISTENCY WITH CROPS
PERMITS, AND ALERTS THE PERMITTEE TO THE FACT THAT THE PERMIT ALLOWS
HIM/HER TO PERFORM ONLY WORK SPECIFICALLY DESCRIBED BY THE PERMIT. ANY
OTHER ACTIVITIES WHICH REQUIRE A PERMIT BUT ARE NOT SPECIFICALLY
IDENTIFIED AND AUTHORIZED IN THE PERMIT CANNOT BE PERFORMED UNLESS THE
PERMIT IS MODIFIED OR A NEW PERMIT IS OBTAINED.
THIS SECTION ALSO INCLUDES PERMIT CONDITIONS WHICH THE STATE DIRECTOR
SHALL INCLUDE IN STATE 404 PERMITS. THESE CONDITIONS MAY VARY IN THEIR
WORDING FROM PERMIT TO PERMIT, BUT MUST BE APPLIED, TO THE EXTENT
APPROPRIATE, IN EVERY PERMIT.
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FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 111 OF 225
COSTLE DM ADMINISTRATOR
EPA
113610
REGULATIONS
THE PERMIT MUST NOW INCLUDE DESCRIPTIONS OF THE GEOGRAPHIC AREA,
SPECIFIC SITE, TYPE, SIZE, AND PURPOSE OF ANY AUTHORIZED DISCHARGE, AS
WELL AS THE WATER QUALITY STANDARDS, EFFLUENT LIMITATIONS, AND TOXIC
EFFLUENT STANDARDS WITH WHICH THE DISCHARGE MUST COMPLY. THESE
REQUIREMENTS ARE INTENDED TO AVOID ANY CONFUSION AS TO WHAT IS
AUTHORIZED BY THE PERMIT AND WHAT LIMITATIONS ARE IMPOSED ON THE
AUTHORIZED DISCHARGE. THE PERMIT MUST ALSO INCLUDE A SPECIFIC DATE BY
WHICH WORK MUST COMMENCE. THIS WILL ENSURE THAT THE PERMITTEE KNOWS
EXACTLY WHEN THE DISCHARGE IS AUTHORIZED AND WHEN IT IS NOT.
THIS SECTION WAS PROPOSED AS SECTION 123.93. ONE COMMENTER SUGGESTED
THAT THE REQUIREMENT FOR THE STATE AND THE SECRETARY TO ENTER INTO AN
AGREEMENT WAS UNNECESSARY. EPA DISAGREES. THE MOA WITH THE SECRETARY
IS THE PRIMARY MEANS OF IMPLEMENTING THE REQUIREMENTS OF SECTIONS 404(G)
AND (H) OF CWA. IT IS NECESSARY TO COORDINATE THE TRANSFER OF THE
FEDERAL PROGRAM APPLICABLE TO STATE-REGULATED WATERS TO THE STATE, AND
TO CLEARLY ESTABLISH WHERE THE JURISDICTION OF THE CORPS ENDS AND THAT
OF THE STATE BEGINS. THE CORPS WILL IDENTIFY FOR THE STATE THOSE WATERS
WITHIN THE STATE OVER WHICH THE CORPS WILL RETAIN JURISDICTION. THE MOA
WITH THE SECRETARY WILL DESCRIBE THIS DIVISION OF JURISDICTION, AND
CONFIRM THE STATE'S UNDERSTANDING OF ITS JURISDICTION AS SET OUT IN THE
PROGRAM DESCRIPTION UNDER SECTION 123.4(H)(1).
TWO COMMENTERS FELT THAT SECTION 123.99(F), WHICH PROHIBITS THE STATE
FROM ISSUING A SECTION 404 PERMIT IF THE JUDGEMENT OF THE SECRETARY THE
DISCHARGE WOUDL SUBSTANTIALLY IMPAIR ANCHORAGE OR NAVIGATION, SHOULD BE
STRUCK. EPA CANNOT INCORPORATE THESE COMMENTS SINCE TO DO SO WOULD
CONFLICT WITH THE EXPRESS LANGUAGE OF SECTION 404(G)(1)(F) OF CWA.
THIS SECTION WAS PROPOSED AS SECTION 123.98. SEVERAL COMMENTERS
OBJECTED TO ANY APPLICATION OF THE DRAFT PERMIT REQUIREMENTS OF SECTION
124.6 TO STATE SECTION 404 PROGRAMS. AS IN THE PROPOSAL, DRAFT STATE
SECTION 404 PERMITS WILL CONTINUE TO BE REQUIRED IN CERTAIN CASES. IN
MOST CASES DRAFT PERMITS WILL NOT BE REQUIRED. HOWEVER, FOR THOSE
ACTIVITIES FOR WHICH EPA MAY NEVER WAIVE PERMIT REVIEW, SUCH AS MAJOR
PROJECTS OR PROJECTS IN PARTICULARLY SENSITIVE AREAS, AND FOR OTHER
ACTIVITIES WHEN EPA DEEMS IT NECESSARY, THE STATE WILL BE REQUIRED TO
PREPARE AND CIRCULATE A DRAFT PERMIT. (SEE THE DISCUSSION UNDER SECTION
124.6 OF THIS PREAMBLE FOR A GENERAL JUSTIFICATION OF THE DRAFT PERMIT
REQUIREMENT.) AS DISCUSSED IN THE PREAMBLE TO SECTION 123.6(F), THE
CATEGORIES OF DISCHARGES FOR WHICH A DRAFT STATE SECTION 404 PERMIT IS
REQUIRED HAVE BEEN MORE CLEARLY DEFINED.
TWO INDUSTRY COMMENTERS AND ONE STATE AGENCY OBJECTED TO EPA REVIEW
OF STATE PERMITS IN GENERAL AND THE 90-DAY REVIEW PERIOD IN PARTICULAR.
NO CHANGES WERE MADE BECAUSE THE PROVISIONS OF THIS SECTION FOLLOW FROM
THE EXPRESS LANGUAGE OF SECTION 404(J) OF CWA. IF THE REGIONAL
ADMINISTRATOR IS GOING TO COMMENT UPON A PERMIT APPLICATION OR DRAFT
PERMIT, HE OR SHE SHALL NOTIFY THE STATE DIRECTOR WITHIN 30 DAYS OF
RECEIPT. IF SUCH NOTIFICATION IS MADE IN TIME, THE REGIONAL
ADMINISTRATOR SHALL HAVE AN ADDITIONAL 60 DAYS TO RESPOND. RESPONSES
WILL NORMALLY BE GIVEN IN LESS THAN THE FULL 90-DAY PERIOD.
THE FOLLOWING CHART SHOULD CLARIFY THE ENTIRE STATE SECTION 404
PERMIT APPLICATION REVIEW PROCESS.
BILLING CODE 6560-01-M
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FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 112 OF 225
COSTLE DM ADMINISTRATOR
EPA
113611
REGULATIONS
STATE 404 PROGRAMS - PERMIT APPLICATION REVIEW PROCESS
TABLE OMITTED.
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FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 113 OF 225
COSTLE DM ADMINISTRATOR
EPA
113612
REGULATIONS
THIS SECTION WAS PROPOSED AS SECTION 123.101. IT HAS BEEN SHORTENED
IN ORDER TO AVOID DUPLICATION WITH SECTION 123.9 AND ELIMINATE
UNNECESSARY PROVISIONS. THESE CHANGES DO NOT IN ANY WAY WEAKEN THE
STATE ENFORCEMENT AUTHORITY REQUIREMENTS; EXPECTATIONS OF DILIGENT AND
EFFECTIVE STATE ENFORCEMENT HAVE NOT BEEN ALTERED. THE COMPLETE
REQUIREMENTS FOR STATE 404 PROGRAM ENFORCEMENT AUTHORITY CAN BE
ASCERTAINED BY READING BOTH SECTION 123.9 AND SECTION 123.103.
THIS SECTION (PROPOSED SECTION 123.104) HAS BEEN RETAINED LARGELY IN
ITS PROPOSED FORM. THE FOLLOWING CHART SHOULD CLARIFY THE ENTIRE STATE
404 PROGRAM SUBMISSION AND PROGRAM APPROVAL PROCESS.
BILLING CODE 6560-01-M
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 114 OF 225
COSTLE DM ADMINISTRATOR
EPA
113613
REGULATIONS
404 PROGRAM SUBMISSION AND APPROVAL PROCESS.
TABLE OMITTED.
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FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 115 OF 225
COSTLE DM ADMINISTRATOR
EPA
113614
REGULATIONS
PART 124 ESTABLISHES THE PROCEDURES FOR ISSUING, DENYING, MODIFYING,
REVOKING AND REISSUING, OR TERMINATING EPA-ISSUED RCRA, UIC, PSD, AND
NPDES PERMITS. IT ALSO ESTABLISHES PROCEDURES APPLICABLE TO CERTAIN
STATE ADMINISTRATED PERMIT PROGRAMS.
THIS FRAMEWORK GIVES EPA THE DISCRETION TO PROCESS RCRA, UIC, PSD, OR
NPDES PERMITS SEPARATELY OR IN COMBINATION. WHILE CONSOLIDATING PERMIT
PROCEDURES IS NOT MANDATORY, IT IS ENCOURAGED WHENEVER A FACILITY OR
ACTIVITY REQUIRES PERMITS UNDER MORE THAN ONE STATUTE. WITHOUT
CONSOLIDATION, A FACILITY NEEDING MULTIPLE PERMITS WOULD REPEAT THE
ENTIRE PERMIT PROCESS FOR EACH PERMIT. BUT WITH THE OPPORTUNITY FOR
JOINT ISSUANCE OF DRAFT PERMITS, JOINT COMMENT PERIODS, AND JOINT PUBLIC
HEARINGS UNDER PART 124, A FACILITY WOULD GO THROUGH THE PROCESS ONLY
ONCE.
WHEN EPA ISSUES ALL THE PERMITS REQUIRED BY A FACILITY, THE PROCESS
MAY BE CONSOLIDATED AT ANY TIME. WHEN RESPONSIBILITY IS DIVIDED BETWEEN
EPA AND A STATE, THE REGULATIONS ENCOURAGE JOINT PROCEEDINGS.
PART 124 INCLUDES PROCEDURES FOR ISSUING PERMITS UNDER REGULATIONS
IMPLEMENTING THE "PREVENTION OF SIGNIFICANT DETERIORATION" (PSD)
PROVISIONS OF THE CLEAN AIR ACT. THESE PROCEDURES ARE SIMILAR TO 40 CFR
SECTION 52.21(R). NO PARALLEL REQUIREMENTS HAVE BEEN INCLUDED IN PARTS
122 AND 123 BECAUSE THE MECHANISM FOR APPROVING STATE PROGRAMS UNDER THE
CLEAN AIR ACT DIFFERS FROM THAT FOR OTHER PERMIT PROGRAMS. EPA WILL
EXPLORE THE POSSIBILITY OF MORE COMPREHENSIVE CONSOLIDATION IN THE
FUTURE.
UNDER THESE PROCEDURES, A FACILITY MUST APPLY FOR A PERMIT UNDER THE
REQUIREMENTS IN PART 122 (RCRA, UIC, NPDES) OR 40 CFR SECTION 52.21
(PSD). THE DIRECTOR REVIEWS THE APPLICATION AND NOTIFIES THE APPLICANT
WHEN THE APPLICATION IS COMPLETE (SECTION 124.3). THE DIRECTOR THEN
DECIDES WHETHER TO DENY THE APPLICATION OR PREPARE A DRAFT PERMIT. IF
THE FORMER, THE DIRECTOR ISSUES A NOTICE OF INTENT TO DENY; IF THE
LATTER, HE OR SHE PREPARES A DRAFT PERMIT UNDER SECTION 124.6. BOTH
DECISIONS ARE ACCOMPANIED BY A "STATEMENT OF BASIS" (SECTION 124.7) OR A
"FACT SHEET" (SECTION 124.8) THAT BECOMES PART OF THE "ADMINISTRATIVE
RECORD" ASSEMBLED FOR ALL EPA-ISSUED PERMITS (SECTION 124.9). BECAUSE
OF PRACTICAL LIMITS ON EPA'S ABILITY TO EXPLAIN IN COMPREHENSIVE DETAIL
EACH OF THE PERMITS IT ISSUES, THE DEPTH OF DISCUSSION IN THE FACT SHEET
OR STATEMENT OF BASIS WILL BE RELATED TO THE IMPORTANCE OF THE ISSUES
INVOLVED AND THEIR CONTROVERSIAL NATURE.
DECISIONS TO MODIFY, REVOKE AND REISSUE, OR TERMINATE A PERMIT
(SECTION 124.5) ALSO REQUIRE THE DIRECTOR TO DENY THE REQUEST OR PREPARE
A DRAFT PERMIT. THE DIRECTOR MAY TAKE ANY OF THESE ACTIONS EITHER ON
HIS OR HER INITIATIVE OR BY ACTING ON A REQUEST SUBMITTED BY ANY
INTERESTED PERSON. DENIALS OR REQUESTS FOR MODIFICATION, REVOCATION AND
REISSUANCE, OR TERMINATION, UNLIKE DENIALS OF APPLICATIONS, ARE NOT
SUBJECT TO PUBLIC NOTICE, PUBLIC COMMENT OR PUBLIC HEARINGS. IF THE
DIRECTOR DECIDES TO DENY THE REQUEST, HE OR SHE SENDS THE REQUESTER A
NOTICE BRIEFLY STATING REASONS FOR THE DENIAL. THIS NOTICE IS NOT
ACCOMPANIED BY A "STATEMENT OF BASIS" OR A "FACT SHEET." AND AN
"ADMINISTRATIVE RECORD" IS NOT ASSEMBLED. DENIALS OF REQUESTS FOR
MODIFICATION, REVOCATION AND REISSUANCE, OR TERMINATION CANNOT BE
FORMALLY APPEALED TO THE ADMINISTRATOR UNDER SECTION 124.19 BUT ONLY
INFORMALLY UNDER SECTION 124.5 (B). ALL DRAFT PERMITS PREPARED UNDER
SECTIONS 124.5 AND 124.6 ARE SUBJECT TO PUBLIC NOTICE (SECTION 124.10),
PUBLIC COMMENT (SECTION 124.11) AND, IN SUITABLE CASES, PUBLIC HEARINGS
(SECTION 124.12). THIS PROCESS ALLOWS ANY INTERESTED PERSON TO BRING
FORWARD ANY COMMENTS OR QUESTIONS CONCERNING THE DRAFT PERMIT OR ITS
SUPPORTING MATERIALS. AFTER THE COMMENT PERIOD (INCLUDING ANY PUBLIC
HEARING) HAS CLOSED, EPA ISSUES A FINAL DECISION ON A PERMIT (SECTION
124.15). THE FINAL PERMIT DECISION IS ACCOMPANIED BY A RESPONSE TO ALL
SIGNIFICANT COMMENTS (SECTION 124.17) WHICH, TOGETHER WITH ADDITIONAL
SUPPORTING MATERIAL, COMPLETES THE FINAL ADMINISTRATIVE RECORD (SECTION
124.18).
WHENEVER COMMENTERS ON A DRAFT PERMIT ASK THAT CHANGES BE MADE, THE
FINAL PERMIT WILL NOT BECOME EFFECTIVE UNTIL 30 DAYS AFTER NOTICE IS
SERVED UNDER SECTION 124.15(A). THIS GAP BETWEEN THE DATE OF ISSUANCE
AND THE EFFECTIVE DATE OF A FINAL PERMIT ALLOWS INTERESTED PERSONS TIME
TO APPEAL A DECISION ON A RCRA, UCI, OR PSD PERMIT TO THE ADMINISTRATOR
UNDER SECTION 124.19 OR REQUEST AN EVIDENTIARY HEARING FOR AN NPDES
PERMIT UNDER SECTION 124.74. IF NO SUCH COMMENTS ARE RECEIVED, THE
FINAL PERMIT IS ISSUED AND EFFECTIVE THE SAME DAY.
WHEN AN APPROVED STATE PROGRAM IS THE PERMITTING AUTHORIGY, THE STATE
DIRECTOR MUST PREPARE A DRAFT PERMIT, PROVIDE PUBLIC NOTICE AND
OPPORTUNITY FOR A HEARING AND ALLOW THE PUBLIC AT LEAST 30 DAYS TO
COMMENT ON THE DRAFT PERMIT BEFORE A FINAL PERMIT IS ISSUED. A FACT
SHEET FOR ALL MAJOR PERMITS IS ALSO REQUIRED. (THESE REGULATIONS DO NOT
INCLUDE REQUIREMENTS FOR PROCESSING STATE-ISSUED PSD PERMITS.) SECTION
HEADINGS (OR WHEN NECESSARY, PARAGRAPH HEADINGS) HAVE BEEN HIGHLIGHTED
TO MAKE IT EASIER TO IDENTIFY WHICH PART 124 REQUIREMENTS APPLY TO
APPROVED STATE PROGRAMS.
PART?
THERE ARE THREE KINDS OF HEARINGS AVAILABLE UNDER PART 124: THE
PUBLIC HEARINGS, THE EVIDENTIARY HEARING AND THE NON-ADVERSARY PANEL
HEARING.
(1) THE PUBLIC HEARING. SECTION 124.12 DESCRIBES A PUBLIC HEARING
THAT IS PURELY LEGISLATIVE IN NATURE. PUBLIC HEARINGS ARE GRANTED IN
TWO SITUATIONS: (1) UPON WRITTEN REQUEST, IF THE DIRECTOR FINDS "A
SIGNIFICANT DEGREE OF PUBLIC INTEREST" IN A RCRA, UIC, PSD, OR NPDES
DRAFT PERMIT OR(2) WITHOUT REQUEST AT THE DIRECTOR'S DISCRETION. AT
SUCH A HEARING, ORAL OR WRITTEN STATEMENTS AND DATA CONCERNING THE DRAFT
PERMIT CAN BE SUBMITTED BY ANY INTERESTED PERSON. IN GENERAL, THIS IS
THE ONLY TYPE OF HEARING THAT WILL BE HELD ON RCRA, UIC, OR PSD PERMITS.
LIMITED EXCEPTIONS TO THIS RULE ARE DESCRIBED BELOW.
(2) THE EVIDENTIARY HEARING. EVIDENTIARY HEARINGS ARE PROVIDED FOR
IN SUBPART E. THESE HEARINGS ARE AVAILABLE WHENEVER NPDES PERMITS ARE
CONTESTED, IF A WRITTEN REQUEST IS FILED WITHIN 30 DAYS AFTER A DECISION
ON THE FINAL PERMIT. EVIDENTIARY HEARINGS ALSO ARE AVAILABLE WHENEVER
RCRA PERMITS ARE TERMINATED. UNDER CERTAIN CIRCUMSTANCES (OUTLINED IN
SECTION 124.74(B)( )), PERSONS REQUESTING AN EVIDENTIARY HEARING ON AN
NPDES PERMIT ALSO MAY REQUEST THAT THE EVIDENTIARY HEARING INCLUDE
CLOSELY RELATED CONDITIONS OF A RCRA OR UIC PERMIT. PSD PERMITS CAN
NEVER BE MADE SUBJECT TO A SUBPART E HEARING.
(3) THE NON-ADVERSARY PANEL HEARING. SUBPART F CONTAINS PROCEDURES
FOR CONDUCTING A NON-ADVERSARY PANEL HEARING. THESE NEW PROCEDURES
PRIMARILY APPLY TO SPECIFIC KINDS OF NPDES PERMITS. PANEL HEARINGS MAY
BE HELD FOR FIRST DECISIONS ON ANY CWA VARIANCE AND FOR THE ISSUANCE OF
ANY OTHER NPDES PERMIT WHICH CONSTITUTES "INITIAL LICENSING" UNDER THE
ADMINISTRATIVE PROCEDURE ACT. THE REGIONAL ADMINISTRATOR ALSO MAY USE
THESE PROCEDURES WHEN MAKING RCRA OR UIC PERMIT DECISIONS, OR WHEN
PREPARING A DRAFT NPDES GENERAL PERMIT UNDER SECTION 122.59. FINALLY,
THE PARTIES TO AN EVIDENTIARY HEARING UNDER SUBPART E MAY AGREE TO USE
SUBPART F PROCEDURES INSTEAD. WHENEVER A SUBPART F HEARING IS HELD ON
ONE PERMIT AND OTHER PERMITS SUBJECT TO THIS PART HAVE BEEN CONSOLIDATED
WITH THE FIRST PERMIT, ALL THE PERMITS ARE PROCESSED TOGETHER UNDER
SUBPART F.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 116 OF 225
COSTLE DM ADMINISTRATOR
EPA
113615
REGULATIONS
/1/ ONE COMMENTER ARGUED THAT THESE REGULATIONS SHOULD BE DELAYED
BECAUSE OF POSSIBLE INCONSISTENCY WITH THE ENERGY MOBILIZATION BOARD
PROPOSALS. IN FACT, THESE REGULATIONS ARE ENTIRELY CONSISTENT WITH THAT
LEGISLATION. BOTH THE HOUSE AND SENATE VERSIONS OF THE BILL PLACE THEIR
MAJOR EMPHASIS ON COORDINATING, AND WHERE POSSIBLE, CONSOLIDATING
DECISIONMAKING FOR A FACILITY. THIS IS ALSO THE AIM OF THESE
REGULATIONS.
IN A PANEL HEARING THE PRESIDING OFFICER SITS WITH A PANEL OF OTHER
EPA EMPLOYEES. TOGETHER THEYQUESTION THE PARTICIPANTS, RULE ON REQUESTS
FOR CROSS-EXAMINATION, AND SCHEDULE SUPPLEMENTAL HEARINGS FOR
CROSS-EXAMINATION. A RECOMMENDED DECISION IS ISSUED AND BECOMES FINAL
IF NOT APPEALED TO THE ADMINISTRATOR WITHIN 30 DAYS. (THE PRESIDING
OFFICER WILL GENERALLY BE AN ADMINISTRATIVE LAW JUDGE. PERSONS OTHER
THAN ADMINISTRATIVE LAW JUDGES MAY SERVE AS PRESIDING OFFICERS IF NO
NPDES PERMIT OTHER THAN A GENERAL PERMIT IS INVOLVED OR BY AGREEMENT OF
THE PARTIES IF AN NPDES PERMIT OTHER THAN A GENERAL PERMIT IS INVOLVED.)
TO CLARIFY THE DIFFERENT TYPES OF HEARINGS AVAILABLE, EPA HAS ADOPTED
THE FOLLOWING TERMINOLOGY:
A "PUBLIC HEARING" IS A HEARING UNDER SECTION 124.12.
AN "EVIDENTIARY HEARING" IS A HEARING UNDER SUBPART E OF PART 124.
A "PANEL HEARING" IS A HEARING UNDER SUBPART F OF PART 124.
A "FORMAL HEARING" IS EITHER A HEARING UNDER SUBPART E OR A HEARING
UNDER SUBPART F, SINCE BOTH TYPES OF HEARINGS CONFORM TO THE FORMAL
HEARING REQUIREMENTS OF THE ADMINISTRATIVE PROCEDURE ACT.
THESE TERMS CAN BE FOUND IN THE "DEFINITIONS" SECTION (SECTION
124.2).
D. HOW DOES THIS PART RELATE TO THE JUNE 14, 1979, PROPOSED
REGULATIONS?
THE FOLLOWING IS A DISCUSSION OF SIGNIFICANT COMMENTS RECEIVED AND
THE BASIS FOR REVISIONS MADE TO PART 124 OF THE PROPOSED REGULATIONS.
MINOR EDITORIAL CHANGES HAVE BEEN MADE IN MOST SECTIONS AND ARE NOT
DISCUSSED.
EPA HAS ATTEMPTED TO ADDRESS ALL SIGNIFICANT COMMENTS RECEIVED ON
THIS PART DURING THIS RULEMAKING. HOWEVER, THE PROCEDURES IN PART 124
ARE A DIRECT OUTGROWTH OF THE PROCEDURES IN THE FINAL NPDES REGULATIONS
PUBLISHED JUNE 7, 1979. SEE 44 FR 32854. MANY COMMENTS ADDRESSED IN
THE PREAMBLE TO THOSE REGULATIONS APPARENTLY WERE ANSWERED
SATISFACTORILY AND WERE NOT RAISED AGAIN. AS THEY STILL MAY BE RELEVANT
TO A FULL UNDERSTANDING OF THESE PROCEDURES, THE READER MAY FIND IT
HELPFUL TO READ THE PREAMBLE TO THE FINAL NPDES REGULATIONS AS WELL AS
THIS PREAMBLE.
A NUMBER OF COMMENTERS QUESTIONED THE VALUE OF THE ENTIRE
CONSOLIDATION EFFORT. SEVERAL POINTS WERE MADE.
(1) CONSOLIDATION WILL BE TOO CUMBERSOME.
SEVERAL COMMENTERS ARGUED THAT CONSOLIDATION WOULD SLOW DOWN THE
PERMITTING PROCESS TO THE PACE OF THE SLOWEST PERMIT. THEY PROVIDED
GRAPHIC EXAMPLES OF HOW CONFUSION WOULD RESULT WHEN DECISIONMAKING ON
ONE PERMIT INTERACTED WITH DECISIONMAKING ON ANOTHER. THESE COMMENTERS
ALSO ARGUED FOR THE EFFICIENCY OF A FACILITY GETTING ITS PERMITS IN
SEQUENCE, AS THEY ARE NEEDED, RATHER THAN ALL AT ONCE. ACCORDINGLY, THE
COMMENTS SUGGESTED THAT CONSOLIDATION OUGHT TO BE AT THE OPTION OF THE
PERMIT APPLICANT.
WHILE ISSUING SEVERAL PERMITS TOGETHER OFTEN MAY TAKE LONGER THAN
ISSUING THE FIRST OF A SEQUENCE OF PERMITS, THIS IS NOT THE WHOLE
PICTURE. FIRST, RCRA, UIC, PSD, AND NEW SOURCES NPDES PERMITS ARE
CONSTRUCTION PERMITS. A NEW FACILITY OR ACTIVITY WHICH REQUIRES A
PERMIT UNDER MORE THAN ONE STATUTE MUST OBTAIN ALL REQUIRED PERMITS
BEFORE CONSTRUCTION CAN BEGIN. THUS, IT IS THE GRANTING OF THE LAST
PERMIT, NOT THE FIRST, THAT COMPLETES THE JOB OF SPECIFYING THE
ENVIRONMENTAL REQUIREMENTS APPLICABLE TO A PLANT. PLANNING AND
FINANCING OFTEN CANNOT PROCEED UNTIL THOSE ADMINISTRATIVE REQUIREMENTS
ARE FIXED. CONSOLIDATING THE PROCEDURES, IN ALMOST ALL CASES, WILL
ACCELERATE THE GRANTING OF THAT LAS AND MOST IMPORTANT PERMIT.
SECOND, AND MORE IMPORTANT, THE VERY PROCESS OF ISSUING PERMITS TO A
MAJOR SOURCE IN SEQUENCE, RATHER THAN AT THE SAME TIME, LEADS TO
PROBLEMS OF ITS OWN. THE ISSUANCE OF AN EARLIER PERMIT MAY HAVE BEEN
BASED ON ASSUMPTIONS ABOUT WHAT A LATER PERMIT WOULD REQUIRE. WHEN THE
LATER PERMIT IMPOSES UNANTICIPATED REQUIREMENTS, THE FIRST PERMIT THEN
MAY NEED TO BE RE-EXAMINED. MOREOVER, EVIDENCE INTRODUCED AT A LATER
PERMIT PROCEEDING MAY AFFECT THE EVIDENCE AT AN EARLIER PROCEEDING AND
CALL INTO QUESTION AN EARLIER DECISION. WHENEVER SUCH SITUATIONS ARISE,
THE AGENCY, (AND THE APPLICANT) ARE FACED WITH EITHERTRYING TO PATCH UP
THE EARLIER PERMIT, WHICH IS SLOW AND CUMBERSOME, OR MOVING TOWARD FINAL
ACTION AND JUDICIAL REVIEW WITH QUESTIONS OF CONSISTENCY UNRESOLVED.
CONSOLIDATION AT LEAST PROVIDES A MECHANISM BY WHICH SUCH PROBLEMS CAN
BE IDENTIFIED AND RESOLVED BEFORE THE FINAL PERMITS ARE ISSUED.
FOR THESE REASONS EPA HAS REJECTED THE SUGGESTION NOT TO PROCEED
FURTHER WITH CONSOLIDATION AT THIS TIME. /1/
EPA ALSO HAS REJECTED THE SUGGESTION THAT CONSOLIDATION SHOULD BE THE
CHOICE OF THE PERMIT APPLICANT ONLY. THE REGULATIONS PROVIDE THAT THE
PERMIT APPLICANT MAY REQUEST CONSOLIDATION, AND IN MOST CASES
CONSIDERABLE WEIGHT WILL BE GIVEN TO THAT REQUEST. THERE MAY BE SOME
CASES WHEN STAGGERING THE ISSUANCE OF PERMITS FITS A PROJECT
CONSTRUCTION SCHEDULE BETTER THAN ISSUING ALL THE PERMITS TOGETHER, AND
WHEN THE DANGERS INHERENT IN ISSUING PERMITS IN SEQUENCE ARE WORTH
RISKING. HOWEVER BOTH THE STATES' AND EPA'S INTERESTS IN HANDLING THEIR
OWN WORKLOAD AND THE PUBLIC INTEREST IN EFFECTIVE ENVIRONMENTAL
REGULATIONS ALSO MUST BE CONSIDERED. SINCE BOTH OF THESE INTERESTS
COULD BE SERVED BY CONSOLIDATING PERMITS IN A PARTICULAR CASE, THE
SUGGESTION TO GIVE THE PERMIT APPLICANT VETO POWER OVER CONSOLIDATION
HAS NOT BEEN ACCEPTED.
(2) NEW PROGRAMS SHOULD NOT BE CONSOLIDATED WITH OLDER ONES.
ONE COMMENTER ARGUED THAT BECAUSE THE RCRA AND UIC PROGRAMS ARE NEW,
UNTESTED, AND SUBJECT TO CHANGE, THEY SHOULD NOT BE CONSOLIDATED WITH
THE NPDES AND PSD PROGRAMS.
WE AGREE THAT THESE PROGRAMS ARE NEW AND THAT CONSOLIDATION IS AN
UNTESTED EFFORT. IT IS QUITE LIKELY THAT IN A FEW YEARS, THESE
CONSOLIDATED REGULATIONS MIGHT BE COMPREHENSIVELY REWRITTEN TO ACCOUNT
FOR WHAT WE WILL HAVE LEARNED, JUST AS THE NPDES REGULATIONS HAD TO BE
REVISED IN LIGHT OF PRACTICAL EXPERIENCE.
HOWEVER, THIS IS NO REASON FOR AVOIDING CONSOLIDATION. FROM THE VERY
BEGINNING OF THESE NEW PROGRAMS, QUESTIONS ABOUT THEIR RELATIONSHIP TO
EACH OTHER AND TO OLDER PERMIT PROGRAMS WERE INEVITABLE. THESE
CONSOLIDATED REGULATIONS ARE SIMPLY AN EFFORT TO ADDRESS IN ADVANCE SOME
OF THOSE QUESTIONS EXPLICITLY RATHER THAN TO IMPROVISE SOLUTIONS LATER
ON A CASE-BY-CASE BASIS.
(3) CONSOLIDATION WILL MAKE NEPA MORE BROADLY APPLICABLE.
WHEN THESE REGULATIONS WERE PROPOSED, THE PREAMBLE STATED EPA'S
PORITION THAT THE NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) DOES NOT
REQUIRE PREPARATION OF AN ENVIRONMENTAL IMPACT STATEMENT (EIS) WHEN
PERMITS ARE ISSUED UNDER THE RCRA, UIC, OR PSD PROGRAMS, OR WHEN NON-NEW
SOURCE NPDES PERMITS ARE ISSUED. 44 FR 34247. (JUNE 14, 1979)
NO COMMENTS OPPOSING THIS POSITION WERE RECEIVED, AND A NUMBER OF
COMMENTS SUPPORTED IT, EITHER DIRECTLY OR BY NECESSARY IMPLICATION.
ACCORDINGLY, THE SAME POSITION HAS BEEN ADOPTED IN THE FINAL
REGULATIONS. SEE SECTION 124.9.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 117 OF 225
COSTLE DM ADMINISTRATOR
EPA
113616
REGULATIONS
SEVERAL COMMENTERS WERE CONCERNED THAT CONSOLIDATING PERMITS WOULD
MAKE NEPA MORE BROADLY APPLICABLE. ONE COMMENTER ARGUED THAT EVEN
THOUGH PSD PERMITS ARE EXEMPT FROM NEPA BY STATUTE, IF A PSD PERMIT WERE
CONSOLIDATED WITH A NEW SOURCE NPDES PERMIT FOR THE SAME PLANT, PSD
ISSUES MIGHT HAVE TO BE DISCUSSED IN THE EIS ON THE NPDES PERMIT. THE
RESULT WOULD MAKE NEPA APPLICABLE TO THE PSD PERMIT DESPITE THE EXPLICIT
LANGUAGE OF THE CLEAN AIR ACT.
EPA AGREES THAT THIS IS AN ANOMALOUS RESULT, BUT IT IS HARD TO SEE
HOW TO AVOID IT. GIVEN THE EXPLICIT LANGUAGE OF MANY NEPA CASES THAT
ALL THE REASONABLY FORESEEABLE MAJOR IMPACTS OF A PROJECT MUST BE
DISCUSSED IN AN EIS, A STRONG ARGUMENT CAN BE MADE THAT THE KIND OF
COMPREHENSIVE BALANCING ANALYSIS NEPA CONTEMPLATES WOULD BE IMPOSSIBLE
IF AIR QUALITY IMPACTS WERE TOTALLY EXCLUDED. THIS ARGUMENT, HOWEVER,
DOES NOT RISE OR FALL ON WHETHER THE PERMITS ARE CONSOLIDATED. IT
APPLIES JUST AS STRONGLY TO AN NPDES PERMIT ISSUED TO A SOURCE AFTER OR
BEFORE A PSD PERMIT. INDEED, IN ONE RECENT CASE EPA HAS BEEN CHALLENGED
FOR ITS FAILURE TO ADEQUATELY CONSIDER AIR ISSUES IN AN EIS ON AN NPDES
PERMIT ISSUED AFTER THE SOURCE'S PSD PERMIT. SAVE THE VALLEY, INC. V.
EPA, CIVIL NO. 79-3058 (6TH CIR. 1979). IN SUCH A CASE, ISSUING PERMITS
IN SEQUENCE RATHER THAN TOGETHER WILL LIKELY LEAD TO CONFUSION OF
THENEPA ISSUES. IF THE EIS IS PREPARED FOR ONE PERMIT BEFORE ANOTHER
PERMIT IS ISSUED, ANY NEW INFORMATION PROVIDED IN SUBSEQUENT PERMIT
PROCEEDINGS MAY LEAD TO CHARGES THAT THE EIS IS INADEQUATE FOR NOT
CONSIDERING IT. IF THE EIS IS PREPARED AFTER SOME OF THE PERMITS ARE
ISSUED, ANY NEW INFORMATION IN THE EIS, CONVERSELY, MAY LEAD TO CHARGES
THAT THE CONSIDERATION OF THE EARLIER PERMITS WAS INADEQUATE.
CONSOLIDATING PERMIT PROCEEDINGS OFFERS A PROCEDURAL VEHICLE FOR
AVOIDING THESE RESULTS AND ENSURES THAT WORK ON THE EIS DOES NOT HAVE TO
BE RE-EXAMINED IN THE CONTEXT OF AN INDIVIDUAL PERMIT DECISION.
A FEW COMMENTERS STATED THAT THE REGULATIONS DID NOT CLARIFY WHETHER
PERMIT MODIFICATION, REVOCATION AND REISSUANCE, AND TERMINATION WOULD BE
PROCESSED THROUGH THE SAME PROCEDURES AS PERMIT ISSUANCE AND DENIAL. TO
MAKE THIS CLEAR, THE REGULATIONS IDENTIFY, ON A SECTION-BY-SECTION
BASIS, WHICH KINDS OF PERMIT ACTIONS ARE CONCERNED.
THIS SECTION HAS ALSO BEEN REWRITTEN TO SPECIFY MORE PRECISELY THE
DEFINITIONS THAT APPLY TO THE PSD PROGRAM, AND TO HELP MAKE CLEAR THAT,
FOR PSD, THE GENERAL PROVISIONS OF PART 122 DO NOT APPLY.
(1) A NUMBER OF COMMENTERS URGED EPA TO SPECIFY A DATE BY WHICH AN
APPLICATION SHOULD BE CONSIDERED COMPLETE. ONE COMMENTER SUGGESTED THAT
THIS DATE SHOULD BE THE DATE OF A COMPLETE RESPONSE TO THE DIRECTOR'S
REQUEST FOR ADDITIONAL INFORMATION. EPA HAS ACCEPTED THIS SUGGESTION,
BUT HAS NOT ACCEPTED A SECOND SUGGESTION TO LIMIT THE DIRECTOR'S
AUTHORITY TO REQUEST INFORMATION THAT WILL MAKE THE APPLICATION
COMPLETE. WITHOUT THE POWER TO REQUIRE SUCHINFORMATION, THE DIRECTOR
WILL NOT BE ABLE TO MAKE RESPONSIBLE DECISIONS. IF THE DIRECTOR
BELIEVES AN APPLICATION IS INCOMPLETE AND NEEDS TO BE SUPPLEMENTED, THIS
SECTION NOW REQUIRES HIM OR HER TO LIST, IN A NOTICE OF DEFICIENCY, ALL
THE INFORMATION NEEDED TO MAKE AN APPLICATION COMPLETE. THE LIMITING
FACTOR IS THAT NOT MORE THAN ONE DEFICIENCY NOTICE MAY BE ISSUED IN ANY
GIVEN PERMIT PROCEEDING.
(2) BEYOND THIS, MANY COMMENTERS URGED THAT EPA SET LEGALLY BINDING
DEADLINES FOR ITS OWN ACTIONS UNDER THIS PART. THESE COMMENTS HAVE NOT
BEEN FULLY ACCEPTED FOR THE REASONS SET FORTH IN THE PREAMBLE TO THE
FINAL NPDES REGULATIONS. SEE 44 FR 32892 (JUNE 7, 1979).
BUT, EPA HAS PARTIALLY ACCEPTED THE COMMENTS WHERE MAJOR NEW
FACILITIES OR ACTIVITIES ARE CONCERNED. EPA WILL NOW SET AND MAKE
PUBLIC A SCHEDULE FOR DECISIONMAKING FOR EACH NEW PROJECT.
THE SCHEDULE IS NOT LEGALLY BINDING, ALTHOUGH EPA EXPECTS SCHEDULES
TO BE FOLLOWED IN MOST CASES. IF SCHEDULES WERE SET SO THAT THEY COULD
BE MET IN ALL CASES, THEY WOULD NOT BE OF MUCH USE AS A MANAGEMENET
TOOL. ACCORDINGLY, EPA EXPECTS TO SET SCHEDULES TIGHT ENOUGH TO POSE
SOME RISK OF NOT MEETING THEM, AND IT EXPECTS SOME SCHEDULES WILL NOT BE
MET. THIS PROVISIONS DOES NOT APPLY TO PSD PERMITS AS THEY ARE ALREADY
SUBJECT TO A ONE-YEAR, STATUTORILY IMPOSED, TIMETABLE FOR DECISION.
(3) SOME COMMENTERS RECOMMENDED THAT SECTION 124.3(A) EXPLICITLY
EXEMPT UIC ACTIVITIES AUTHORIZED BY RULE UNDER SECTION 122.37 FROM THE
APPLICATION REQUIREMENT. THIS SECTION DOES NOT APPLY TO THEM BECAUSE
UIC ACTIVITIES AUTHORIZED BY RULE DO NOT "REQUIRE A PERMIT." AN
EXEMPTION HAS BEEN ADDED TO THE FINAL REGULATIONS TO MAKE THIS EXPLICIT.
(4) 40 CFR SECTION 52.21(R)(3) PROVIDES THAT CERTAIN SOURCES
REQUIRING A PSD PERMIT NEED NOT GO THROUGH EPA PERMITTING PROCEDURES IF
THE RELEVANT STATE HAS ALREADY PROVIDED AN EQUIVALENT OPPORTUNITY FOR
PUBLIC COMMENT. THESE PROVISIONS HAVE BEEN INCLUDED IN PART 124 AS
SECTION 124.3(B).
(1) EPA HAS REDRAFTED PROPOSED SECTION 124.4 IN ITS ENTIRETY.
THEPROPOSAL COVERED BOTH EXISTING AND NEW FACILITIES AND ALLOWED
APPLICANTS TO DELAY FILING RCRA AND UIC PERMIT APPLICATIONS FOR UP TO
180 DAYS IN ORDER TO CONSOLIDATE THEM WITH APPLICATINS FOR NEW NPDES
PERMITS OR WITH REAPPLICATIONS FOR EXPIRING NPDES PERMITS.
THESE ELABORATE PROVISIONS WERE INCLUDED IN THE PROPOSAL BECAUSE RCRA
AND UIC PERMITS WERE TO BE GRANTED FOR THE LIFE OF THE FACILITY. THUS,
IT WAS NECESSARY TO PROVIDE A SPECIAL MECHANISM TO COORDINATE ISSUING
THESE PERMITS WITH RENEWALS OF FIVE-YEAR NPDES PERMITS. NOW THAT RCRA
PERMITS AND UIC PERMITS FOR CLASS I WELLS ALSO WILL BE ISSUED FOR FIXED
TERMS, IT WILL BE MUCH SIMPLER TO COORDINATE BY ALLOWING THE DIRECTOR TO
SET PERMITS TO EXPIRE SIMULTANEOUSLY; THE REGULATIONS HAVE BEEN
REWRITTEN TO PROVIDE FOR THAT.
A SPECIAL PROVISION FOR COORDINATING APPLICATIONS IS UNNECESSARY FOR
NEW FACILITIES. SINCE ALL PERMITS SUBJECT TO THIS PART WILL BE REQUIRED
AT THE SAME EARLY STAGE OF THE PROJECT'S PLANNING, THERE WILL BE A
NATURAL INCENTIVE TO FILE CORRESPONDING APPLICATIONS EVEN EARLIER AND AT
ABOUT THE SAME TIME.
(2) A NUMBER OF COMMENTERS (INCLUDING SOME WHO OPPOSE THE CONCEPT OF
CONSOLIDATION) URGED THAT STATES SHOULD BE REQUIRED TO CONSOLIDATE
PERMIT PROCEEDINGS WITH EPA WHENEVER EPA AND A STATE SHARE PERMITTING
AUTHORITY FOR A GIVEN FACILITY OR ACTIVITY. EPA BELIEVES IT WOULD BE
UNWISE TO START THE CONSOLIDATION EFFORT BY COMPELLING THE STATES TO ACT
IN PARALLEL WITH THE FEDERAL GOVERNMENT WHENEVER THE FEDERAL GOVERNMENT
SAW FIT. BECAUSE THE EFFICIENCY OF THE CONSOLIDATION EFFORT WILL
PARTIALLY DEPEND ON STATE COOPERATION, THE COMMENT HAS NOT BEEN
ACCEPTED. THE REGULATIONS HAVE BEEN AMENDED TO REFLECT EPA'S POSITION
THAT APPROVED STATES ARE ENCOURAGED TO CONSOLIDATE APPLICATIONS, BUT ARE
NOT REQUIRED TO DO SO.
(3) THE SECTIONS RELATING TO CONSOLIDATION OF DRAFT PERMITS WERE
ORIGINALLY PART OF PROPOSED SECTION 124.6. PROPOSED SECTION 124.6(D)
HAS BEEN COMBINED WITH THE NEW SECTION 124.4 TO MAKE CLEAR THAT
CONSOLIDATION CAN OCCUR AT DIFFERENT STATES IN THE PERMITTING PROCES.
COMMENTS ADDRESSING PROPOSED SECTION 124.6(D) ARE ANSWERED HERE.
SEVERAL COMMENTERS OBJECTED TO THE POTENTIAL CONSOLIDATION OF PSD
PERMITS WITH OTHER PERMITS. THEY ARGUED THAT CONSOLIDATION OF PSD
PERMITS WOULD CAUSE UNREASONABLY DELAY, AND MIGHT EVEN BREACH THE
ONE-YEAR STATUTORY DEADLINE IMPOSED BY CAA SECTION 165(C).
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 118 OF 225
COSTLE DM ADMINISTRATOR
EPA
113617
REGULATIONS
EPA DISAGREES. COMPLIANCE WITH THE STATUTORY DEADLINE HAS NOT BEEN A
PROBLEM WITH THE VAST MAJORITY OF PSD PERMITS. THE APPLICANT'S RIGHT TO
A SPEEDY DECISION IS EXPLICITLY PRESERVED BY SECTION 124.4(E) WHICH
PROVIDES THAT CONSOLIDATION LEADING TO A BREACH OF THE DEADLINE WILL NOT
OCCUR WITHOUT THE APPLICANT'S CONSENT. ONE YEAR IS SHORT COMPARED TO
THE TIME GENERALLY NEEDED BY THE PRIVATE SECTOR TO PLAN AND CONSTRUCT A
FACILITY WITHOUT REGARD TO ANY FEDERAL REGULATION; LARGE FACILITIES
OFTEN REQUIRE MORE THAN A DECADE. TAKING LONGER TO PROCESS THE PSD
PERMIT ALONE DUE TO CONSOLIDATION IS LIKELY TO BE MORE THAN OFFSET BY
THE SHORTER TIME NEEDED TO PROCESS OTHER PERMITS FOR THE SAME FACILITY
AND BY GAINS FROM CONSIDERING APPLICATIONS TOGETHER INSTEAD OF
SEQUENTIALLY. BECAUSE IT IS THE APPLICATION DATE WHICH FIXES THE RIGHT
TO AVAILABLE PSD INCREMENTS, CONSOLIDATION WILL NOT AFFECT A FACILITY'S
"PLACE IN LINE" FOR AVAILABLE INCREMENTS.
THIS SECTION COMBINES PROPOSED SECTIONS 124.5 AND 124.7 UNDER A
SINGLE HEADING IN ORDER TO ELIMINATE AN UNNECESSARY DISTINCTION BETWEEN
ACTIONS ARISING OUT OF REQUESTS BY INTERESTED PERSONS (INCLUDING THE
PERMITTEE) AND ACTIONS UNDERTAKEN BY THE DIRECTOR WITHOUT ANY PRECEDING
REQUEST. WHETHER A MODIFICATION, REVOCATION AND REISSUANCE, OR
TERMINATION IS BASED ON A REQUEST OR ON AN INDEPENDENT DECISION BY THE
DIRECTOR, THE ACTION MUST BE SUPPORTED BY CAUSE UNDER SECTIONS 122.15 OR
122.16. THIS SECTION HAS BEEN AMENDED TO ALLOW THE DIRECTOR TO REQUEST
THE SUBMISSION OF AN UPDATED APPLICATION WHENEVER A PERMIT IS BEING
MODIFIED AND TO REQUIRE THE SUBMISSION OF A NEW APPLICATION WHENEVER A
PERMIT IS BEING REVOKED AND REISSUED. A DRAFT PERMIT MUST BE PREPARED
FOR ANY MODIFICATION OR REVOCATION AND REISSUANCE UNLESS THE PERMIT
MODIFICATION QUALIFIES AS A MINOR MODIFICATION UNDER SECTION 122.17. A
"NOTICE OF INTENT TO TERMINATE" IS A TYPE OF DRAFT PERMIT AND IS ISSUED
FOR ALL PROPOSED TERMINATIONS. THESE DRAFTS, WHETHER IN PERMIT OR
NOTICE FORM, ARE PROCESSED THE SAME AS ANY DRAFT PERMIT PREPARED UNDER
SECTION 124.6. THEY ARE ACCOMPANIED BY A STATEMENT OF BASIS (SECTION
124.7) OR A FACE SHEET (SECTION 124.8), BASED ON THE ADMINISTRATIVE
RECORD (SECTION 124.9), SUBJECT TO PUBLIC NOTICE (SECTION 124.20), AND
PUBLIC COMMENT (SECTION 124.11) AND PUBLIC HEARINGS (SECTION 124.12).
TERMINATIONS OF RCRA AND NPDES PERMIT ARE ELIGIBLE FOR EVIDENTIARY
HEARINGS UNDER SECTION 124.74.
(1) EPA HAS KEPT THIS SECTION SEPARATE FROM THE SECTION ON DRAFT
PERMITS (SECTION 124.6) FOR TWO REASONS. FIRST, EPA WANTS TO
DISTINGUISH PERMIT ACTIONS THAT CAN BE INITIATED ONLY THE THE PERMITTEE
(PERMIT ISSUANCE BASED UPON AN APPLICATION UNDER SECTION 124.6) FROM
PERMIT ACTIONS THAT CAN BE INITIATED BY THE DIRECTOR (124.5).
WE EMPHASIZE THIS DISTINCTION IN RESPONSE TO ONE COMMENTER WHO ASKED
WHETHER THE DIRECTOR COULD PREPARE A DRAFT PERMIT FOR A FACILITY THAT
HAD NOT EVEN APPLIED FOR ONE. THE DIRECTOR'S AUTHORITY TO TAKE PERMIT
ACTIONS WITHOUT HAVING RECEIVED AN APPLICATION IS LIMITED TO THE
SITUATIONS SPECIFIED IN SECTION 124.5 AND TO GENERAL PERMITS AND PERMITS
BY RULE. SECOND, EPA WANTS TO DISTINGUISH A DENIAL OF A REQUEST FOR
MODIFICATION, REVOCATION AND REISSUANCE, OR TERMINATION UNDER SECTION
124.5 FROM A TENTATIVE DECISION TO DENY A PERMIT APPLICATION UNDER
SECTION 124.6. THE FORMER IS NOT SUBJECT TO THE SAME PROCEDURES AS A
DENIAL OF AN APPLICATION FOR A PERMIT. NOTICE OF A DENIAL OF A REQUEST
FOR MODIFICATION, REVOCATION AND REISSUANCE OR TERMINATION IS NOT A
DRAFT PERMIT AND THERE IS NO OPPORTUNITY FOR PUBLIC COMMENT, A PUBLIC
HEARING OR A FORMAL ADMINISTRATIVE APPEAL. THESE DENIALS ARE SUBJECT
ONLY TO AN INFORMAL APPEAL UNDER SECTION 124.5(B).
IN ADOPTING THIS POSITION, EPA REJECTED COMMENTS URGING THAT
MODIFICATION DENIALS BE APPEALABLE THROUGH THE SAME AGENCY PROCEDURES AS
PERMIT ISSUANCE OR DENIAL. DEPARTURES FROM THE CYCLE OF PERMIT ISSUANCE
AND PERIODIC REEXAMINATION SHOULD NOT BE ENCOURAGED IN SUCH A MANNER.
IF ENCOURAGED, THEY COULD KEEP MANY PERMITS IN A STATE OF PERPETUAL
REEXAMINATION THUS IMPEDING THE CONTROL PROGRAM BEING IMPLEMENTED.
(2) OTHER COMMENTERS URGED THAT THE DIRECTOR SHOULD BE REQUIRED TO
CONSULT WITH THE PERMITTEE BEFORE HE OR SHE MODIFIES, REVOKES AND
REISSUES, OR TERMINATES A PERMIT. IN MOST CASES, MODIFICATIONS BY THE
DIRECTOR WILL BE TRIGGERED BY INFORMATION SUBMITTED BY THE PERMITTEE,
AND THE DIRECTOR MAY DETERMINE WHETHER "CAUSE" EXISTS UNDER SECTION
122.15. THEREFORE, "SURPRISE" MODIFICATION ACTIONS WILL BE RARE.
ALTHOUGH EPA AGREES THAT CONSULTATION MAY BE ADVISABLE IN MANY CASES,
THERE MAY BE OTHER CASES WHERE IT IS NOT ADVISABLE. ACCORDINGLY, THE
COMMENT HAS NOT BEEN ACCEPTED.
(3) THE NATURAL RESOURCES DEFENSE COUNCIL ASKED THAT INTERESTED
PERSONS BESIDES THE PERMITTEE BE ALLOWED TO REQUEST PERMIT MODIFICATION,
REVOCATION AND REISSUANCE, OR TERMINATION. EPA AGREES WITH THIS COMMENT
AND HAS REWRITTEN SECTION 124.5 TO REFLECT THIS.
(4) THIS SECTION DOES NOT CONTAIN SPECIAL PROCEDURES FOR MODIFYING
PSD PERMITS. EPA WILL DECIDE WHETHER SUCH PROCEDURES ARE NECESSARY WHEN
IT PROMULGATES RULES BASED ON ITS SEPTEMBER 5, 1979 NOTICE OF PROPOSED
RULEMAKING AND MAY AMEND THIS SECTION AT THAT TIME. THIS SECTION,
HOWEVER, DOES CONTAIN PROCEDURES BASED ON 40 CFR SECTION 52.21(W) FOR
TERMINATING PSD PERMITS. SINCE THE PURPOSE OF SECTION 52.21(W) IS TO
QUICKLY ADJUST PERMITS GRANTED UNDER AN ERRONEOUS INTERPRETATION OF THE
LAW TO THE CLEAR STANDARDS OF THE ALABAMA POWER DECISION, NO PROCEDURES
ARE PROVIDED FOR THOSE DECISION. THEY SIMPLY WILL BE GRANTED OR DENIED
BY THE REGIONAL ADMINISTRATOR UPON WRITTEN APPLICATION.
(1) A NUMBER OF COMMENTERS OBJECTED TO THE USE OF DRAFT PERMITS.
THESE COMMENTERS WOULD PREFER TO COMMENT ON THE PERMIT APPLICATION
BEFORE THE AGENCY TAKES A TENTATIVE POSITION INSTEAD OF AFTER SUCH A
POSITION HAS BEEN TAKEN AND PREPARED IN THE FORM OF A DRAFT PERMIT.
THESE COMMENTERS FEEL THAT PREPARING A DRAFT PERMIT CREATES THE
IMPRESSION THAT THE AGENCY ALREADY HAS PREJUDGED THE CASE. EPA
DISAGREES WITH THIS VIEW. A DRAFT PERMIT FUNCTIONS ONLY AS A TENTATIVE
DECISION ON THE ISSUANCE, MODIFICATION, REVOCATION AND REISSUANCE, OR
TERMINATION OF A PERMIT. IT IS A MERE PROPOSAL SUBJECT TO CHANGE BASED
UPON COMMENTS RECEIVED DURING THE PUBLIC COMMENT (INCLUDING THE PUBLIC
HEARING) PERIOD. MOREOVER, THERE IS A MAJOR ADVANTAGE TO THE PUBLIC IN
COMMENTING ON THE DRAFT PERMIT RATHER THAN ON THE APPLICATION ALONE.
COMMENTS ON THE APPLICATION ARE INVARIABLY RESTRICTED TO THE CONTENT OF
THE APPLICATION, REFLECTING ONLY THE APPLICANT'S ANALYSIS AND POLICY
CHOICES. THE DRAFT PERMIT, ON THE OTHER HAND, EMBODIES THE TENTATIVE
VIEWS AND ANALYSIS OF THE DECISIONMAKER WHO THE COMMENTS ARE,
ULTIMATELY, DESIGNED TO INFLUENCE. THEREFORE, COMMENTS ON A DRAFT
PERMIT CAN BE WRITTEN IN A MORE FOCUSED AND INFORMED WAY.
(2) THIS SECTION ALSO HAS BEEN AMENDED TO MAKE CLEAR THAT THE
STANDARD PERMIT PROVISIONS OF PART 122 DO NOT APPLY TO PSD PERMITS.
(1) EPA HAS REJECTED COMMENTS URGING THAT THE DISCUSSION REQUIREMENTS
IN BOTH THESE SECTIONS BE EXPANDED. AS EXPLAINED IN THE PREAMBLE TO
EPA'S FINAL NPDES REGULATIONS (SEE 44 FR 32881 (JUNE 7, 1979)), THE
STATEMENT OF BASIS IS SUPPOSED TO BE A BRIEF SUMMARY THAT MEETS MINIMUM
REQUIREMENTS. IF THE DIRECTOR NEEDS TO PROVIDE MORE DETAIL, HE OR SHE
ALWAYS MAY PREPARE A FACT SHEET, WHICH IS MORE COMPREHENSIVE THAN A
STATEMENT OF BASIS.
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FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 119 OF 225
COSTLE DM ADMINISTRATOR
EPA
113618
REGULATIONS
/8/ EXCEPT FOR THE PSD PROGRAM, WHERE AN OPPORTUNITY FOR A HEARING IS
REQUIRED BY STATUTE. SEE CAA SECTION 165(A)(2). EPA BELIEVES THAT THIS
REQUIREMENT SHOULD BE READ IN THE LIGHT OF THE PROVISIONS OF CAA SECTION
307(D)(8) CONCERNING PROCEDURAL ERROS.
/9/ ONE COMMENTER ARGUED THAT BECAUSE THE SDWA SECTION 1424(B) (2)
REQUIRED A FORMAL HEARING FOR CERTAIN INTERIM PERMITS ISSUED THE BY THE
ADMINISTRATOR, CONGRESS MUST ALSO HAVE INTENDED TO IMPOSE SUCH
REQUIREMENTS WHERE THE STATUTE IS SILENT, AS IT IS IN SECTION 1421.
HOWEVER, AS THE PREAMBLE TO THE PROPOSAL EXPLAINED, THE NORMAL APPROACH
IN STATUTORY CONSTRUCTION IS THE OPPOSITE OF THAT ADVOCATED BY THE
COMMENT. (SEE 44 FR 34265 (JUNE 14, 1979).) DIFFERING LANGUAGE
GENERALLY INDICATES DIFFERING MEANINGS, RATHER THAN THE SAME MEANING.
(2) EPA ALSO HAS REJECTED COMMENTS URGING THAT THE STATEMENT OF BASIS
REQUIREMENT BE ELIMINATED FOR UIC PERMITS FOR CLASS II WELLS. PREPARING
A STATEMENT OF BASIS SHOULD NOT BE BURDENSOME EVEN FOR INDIVIDUAL WELLS,
AND THE BURDEN UNDER THE UIC PROGRAM WILL BE ELIMINATED FOR INJECTIONS
AUTHORIZED BY RULE (SECTION 122.37) AND REDUCED FOR INJECTIONS WITHIN
AREA PERMITS (SECTION 122.36).
(3) COMMENTERS SUGGESTED THAT EPA DEFINE "MAJOR PERMITS" MORE
PRECISELY. THOUGH THIS WOULD BE DESIRABLE, THE COMMENT CANNOT BE
ACCEPTED NOW. SUCH A DEFINITION IS A FUNCTION BOTH OF EPA'S KNOWLEDGE
OF THE IMPACT OF THE POLLUTION INVOLVED AND OF ITS RESOURCES TO ADDRESS
THIS ASPECT OF PERMIT ISSUANCE. BOTH ARE TOO UNCERTAIN RIGHT NOW TO
JUSTIFY DEPARTING FROM THE PRESENT APPROACH OF YEAR-BY-YEAR DESIGNATION
OF "MAJOR" PERMITS, WHICH IS DESCRIBED IN SECTION 122.3.
(1) SEVERAL COMMENTERS URGED EPA TO INCLUDE SUPPORTING AS WELL AS
NONSUPPORTING DOCUMENTS IN THE ADMINISTRATIVE RECORD. BECAUSE THE
DOCUMENTS FOR DRAFT PERMITS UNDER THIS SECTION WILL GENERALLY COMPRISE
MOST OF THE MATERIAL IN THE FINAL ADMINISTRATIVE RECORD, EPA AGREES THAT
THE RECORD SHOULD INCLUDE BOTH KINDS OF DOCUMENTS. FACT SHEETS (AND, TO
THE EXTENT DISCUSSION IS NEEDED, STATEMENTS OF BASIS) ALSO SHOULD BE
OBJECTIVE STATEMENTS OF THE ISSUES FACED BY EPA AND SHOULD CITE
DOCUMENTS ON BOTH SIDES OF CONTROVERSIAL ISSUES. NO CHANGE HAS BEEN
MADE BECAUSE THE EXISTING TEXT IS CONSISTENT WITH THIS INTERPRETATION.
(2) ANOTHER COMMENTER SUGGESTED THAT ALL MATERIAL IN THE
ADMINISTRATIVE RECORD BE STAMPED WITH THE DATE OF SUBMISSION. THIS
APPROACH, OR A VARIATION OF IT, MIGHT BE ADVISABLE IN SOME CASES (OR FOR
SOME DOCUMENTS). HOWEVER, RIGHT NOW EPA DOES NOT KNOW ENOUGH ABOUT
HANDLING THESE ADMINISTRATIVE RECORDS TO SPECIFY A PARTICULAR APPROACH
ON QUESTIONS OF DETAIL IN THIS REGULATION.
(1) SEVERAL COMMENTERS STATED THAT THIS SECTION SOUNDED AS IF PUBLIC
HEARINGS COULD NOT BE SCHEDULED WHEN A PERMIT IS ISSUED AND WOULD ONLY
BE HELD IN RESPONSE TO REQUESTS RECEIVED DURING THE PUBLIC COMMENT
PERIOD. THE COMMENTERS ASSUMED, AND EPA AGREES, THAT HEARINGS OFTEN
WILL BE SCHEDULED AT THE SAME TIME THE PUBLIC NOTICE IS ISSUED. A
SENTENCE HAS BEEN ADDED TO SECTION 124.10 (A) TO MAKE THIS CLEAR.
(2) ONE COMMENTER QUESTIONED THE PROVISION FOR GIVING NOTICE OF 404
PERMIT ACTION TO ADJACENT PROPERTY OWNERS, ARGUING THAT THE IDENTITY OF
SUCH OWNERS IN SOME CASES, MIGHT BE VERY HARD TO DETERMINE. ALTHOUGH
EPA BELIEVES SUCH CASES WILL BE RARE, THE LANGUAGE HAS BEEN CHANGED TO
REQUIRE NOTICE TO BE GIVEN TO "ANY REASONABLY ASCERTAINABLE" PROPERTY
OWNER.
(3) ANOTHER COMMENTER OBJECTED TO THE "COMMENT" IN THE PROPOSAL THAT
GAVE THE DIRECTOR THE DISCRETION TO USE PRESS RELEASES AS A METHOD OF
PUBLIC NOTICE. ALTHOUGH EPA ELIMINATED THAT "COMMENT," THE AGENCY
RECOGNIZES THAT THE USE OF PRESS RELEASES FOR PUBLIC NOTICE IS BOTH
CUSTOMARY AND OFTEN ESSENTIAL FOR ANY ORGANIZATION THAT WANTS TO
COMMUNICATE WITH THE PUBLIC.
(4) FINALLY, ONE COMMENTER OBJECTED TO THE INCLUSION UNDER (SECTION
124.10(D) OF A "SUMMARY OF MAJOR CONDITIONS" IN THE NOTICE OF DRAFT
PERMITS. IT ARGUED THAT THIS WOULD EITHER LEAD TO LONG NOTICES OR TO
LITIGATIONFOR FAILURE TO PROVIDE AN ADEQUATE "SUMMARY."
EPA AGREES AND HAS ELIMINATED SUMMARIES FROM THE PUBLIC NOTICE
REQUIREMENTS. NOT ONLY WOULD SUMMARIES RESULT IN LONG PUBLIC NOTICES,
THEY WOULD ALSO IMPOSE AN INCREASED BURDEN ON THE DIRECTOR BY REQUIRING
THE PREPARATION OF AN ADDITIONAL DOCUMENT. SINCE SUMMARIES REPEAT
ESSENTIALLY THE SAME INFORMATION CONTAINED IN THE PERMIT APPLICATION,
DRAFT PERMIT AND STATEMENT OF BASIS OR FACT SHEET, EPA HAS DECIDED TO
REQUIRE COPIES OF THE LATTER DOCUMENTS TO BE SENT TO CERTAIN PERSONS
INSTEAD. THIS REQUIREMENT WOULD SPARE DIRECTORS FROM AN ADDITIONAL
BURDEN WITHOUT SACRIFICING PUBLIC PARTICIPATION. OTHER INTERESTED
PERSONS MAY REQUEST COPIES OF THESE DOCUMENTS.
SEVERAL COMMENTERS ARGUED THAT THE GROUND FOR GRANTING A HEARING --
"SIGNIFICANT DEGREE OF PUBLIC INTEREST" -- WAS VAGUE, AND THAT IT DID
NOT TAKE ACCOUNT OF THE PERMIT APPLICANT'S INTEREST (OR SOMEONE ELSE'S
INTEREST) IN USING THE HEARING TO EXPLORE ISSUES FURTHER.
EPA HAS NOT CHANGED THIS REQUIREMENT. ONE OF THE PURPOSES OF HAVING
A PUBLIC HEARING IS TO RESPOND TO PUBLIC INTEREST, WHICH IS NOT SUBJECT
TO PRECISE MEASUREMENT. EPA, HOWEVER, HAS ADDED A SECOND GROUND FOR
HOLDING A PUBLIC HEARING WHICH ALLOWS THE DIRECTOR TO HOLD A PUBLIC
HEARING AT HIS OR HER DISCRETION.
SINCE A PUBLIC HEARING IS NOT REQUIRED BY ANY OF THE STATUTES COVERED
BY THIS PART, /8/ EPA DOES NOT BELIEVE THAT A REFUSAL TO HOLD A HEARING
BY ITSELF, SHOULD EVER LEAD TO INVALIDATION OF A PERMIT. THE QUESTION
ON JUDICIAL REVIEW SHOULD BE WHETHER THE RECORD EPA GENERATED ADEQUATELY
SUPPORTS THE DECISIONS INVOLVED, NOT WHETHER SOME OTHER RECORD MIGHT
HAVE BEEN BETTER.
I. ADJUDICATORY HEARINGS OR PUBLIC HEARINGS. IN THE PREAMBLE TO THE
PROPOSED REGULATIONS, EPA STATED ITS OPINION THAT A FORMAL EVIDENTIARY
HEARING UNDER SECTION 554 OF THE ADMINISTRATIVE PROCEDURE ACT (APA) IS
NOT REQUIRED FOR ISSUANCE OF RCRA, UIC, OR PSD PERMITS. SUPPORTING
REASONS WERE GIVEN. SEE 44 FR 34264-65. (JUNE 14, 1979)
THIS CONCLUSION PROVED UNCONTROVERSIAL WHERE THE UIC AND PSD PROGRAMS
WERE CONCERNED. EPA DID NOT RECEIVE ANY COMMENTS CHALLENGING ITS
CONCLUSION THAT FORMAL HEARINGS WERE NOT REQUIRED FOR PSD PERMITS, AND
RECEIVED ONLY ONE DISSENTING COMMENT AS TO UIC PERMITS. /9/
THE QUESTION OF THE PROPER PROCEDURES FOR RCRA PERMITS, HOWEVER,
PROVED TO BE THE SINGLE MOST CONTROVERSIAL ISSUE IN PART 124. SEVERAL
MAJOR INDUSTRIAL GROUPS ARGUED THAT FORMAL HEARINGS WERE REQUIRED.
OTHERS WERE EQUALLY FORCEFUL IN THEIR ARGUMENTS THAT NO SUCH HEARING WAS
MANDATED AND THAT THE PROCEDURES PROPOSED BY EPA WERE MORE ELABORATE
THAN JUSTIFIED. BECAUSE OF ITS IMPORTANCE THIS ISSUE WILL BE DISCUSSED
IN DETAIL.
(1) DUE PROCESS ARGUMENTS. SOME COMMENTERS URGED THAT DUE PROCESS
REQUIRED A FORMAL APA HEARING BEFORE THE INITIAL DECISION ON A RCRA
PERMIT. IT IS WELL SETTLED BY NOW, HOWEVER, THAT THE REQUIREMENTS OF
DUE PROCESS ARE FLEXIBLE, AND THAT THE PROCEDURES USED CAN BE ADAPTED TO
THE NATURE OF THE PROBELM BEING ADDRESSED. VERMONT YANKEE NUCLEAR POWER
CORP. V. NRDC, 435 U.S. 517, 524 (1978), MATHEWS V. ELDRIDGE, 424 U.S.
319 (1976), GOSS V. LOPEZ, 419 U.S. 565 (1975). ALTHOUGH SOME OF THE
COMMENTERS ON THIS POINT CITED EARLIER EDITIONS OF PROFESSOR DAVIS'
TREATISE ON ADMINISTRATIVE LAW, THE LATEST EDITION OF THE TREATISE
STRONGLY FAVORS THIS FLEXIBLE APPROACH. K. DAVIS, ADMINISTRATIVE LAW
TREATISE, CHS. 10, 12 (2D ED 1979).)
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 120 OF 225
COSTLE DM ADMINISTRATOR
EPA
113619
REGULATIONS
EPA BELIEVES IT HAS FULLY MET WHATEVER DUE PROCESS TESTS MAY APPLY.
IT HAS PROVIDED FOR NOTICE OF WHAT THE AGENCY PROPOSES TO DO, AN
OPPORTUNITY TO CHALLENGE THAT PROPOSAL BOTH THROUGH WRITTEN COMMENTS AND
AT AN INFORMAL HEARING, A RESPONSE TO COMMENTS AND A DECISION BASED ON
THE ADMINISTRATIVE RECORD.
IT HAS DONE ALL THIS IN THE CONTEXT OF DECISIONS AIMED, NOT AT
PUNISHING PAST MISCONDUCT IN ANY WAY, BUT AT IMPLEMENTING AN ENTIRELY
NEW FIELD OF REGULATORY POLICY. DECISIONS WILL BE BASED ON CHOICES
AMONG POLICY APPROACHES; NOT ON JUDGEMENTS OF LEGAL VIOLATION.
MOREOVER, THE FACTS AT ISSUE WILL BE THE TYPES OF TECHNICAL QUESTIONS
THAT TRIAL PROCEDURES ARE NOT PARTICULARLY WELL SUITED TO ADDRESS.
INDEED, DUE TO THE SIMILARITY AMONG RCRA, UIC AND PSD ISSUES, A
DECISION THAT DUE PROCESS REQUIRES A FORMAL APA HEARING FOR RCRA PERMITS
CERTAINLY WOULD LEAD TO THE CONCLUSION THAT SUCH A HEARING IS REQUIRED,
ON BOTH THE FEDERAL AND STATE LEVELS, FOR PSD AND UIC PERMITS, THIS
CONCLUSION PROBABLY WOULD RESULT IN A DECISION THAT FORMAL HEARINGS ARE
REQUIRED FOR MANY OTHER TYPES OF STATE AND FEDERAL LAND USE PERMITS
CURRENTLY GRANTED OR DENIED BY LESS CUMBERSOME METHODS.
(2) THE LEGISLATIVEINTENT. MOST COMMENTERS DID NOT EMPHASIZE THE DUE
PROCESS ARGUMENT. INSTEAD, THEY LOOKED TO RCRA ITSELF, AND MADE TWO
ARGUMENT; ONE BASED ON THE TEXT OF THE STATUTE AND ONE ON ITS
LEGISLATIVE HISTORY.
(A) THE LANGUAGE OF THE STATUTE. NO COMMENTER DENIED THAT THE
PERMITTING SECTION OF RCRA, SECTION 3005, CONTAINS NO REFERENCE TO A
"HEARING" OF ANY SORT IN CONNECTION WITH THE INITIAL GRANT OR DENIAL OF
A PERMIT. INSTEAD, THE COMMENTERS FIXED ON SECTION3008(B), WHICH
PROVIDES FOR A "PUBLIC HEARING" ON "ANY ORDER OR ANY SUSPENSION OR
REVOCATION OF A PERMIT". THEY ARGUED THAT "ORDER" HERE HAS THE MEANING
GIVEN IN THE DEFINITIONS SECTIONS OF THE ADMINISTRATIVE PROCEDURE ACT,
NAMELY: "THE WHOLE OR A PART OF A FINAL DISPOSITION, WHETHER
AFFIRMATIVE, NEGATIVE, INJUNCTIVE, OR DECLARATORY IN FORM, OF AN AGENCY
IN A MATTER OTHER THAN RULEMAKING BUT INCLUDING LICENSING." 5 U.S.C.
SECTION 551(6). IF THIS ARGUMENT IS ACCEPTED, THE INITIAL GRANTING OR
DENYING OF A LICENSE FALLS WITHIN THE APA DEFINITION OF "ORDER" AND A
FORMAL HEARING IS REQUIRED. BUT THERE ARE THREE PROBLEMS IN ACCEPTING
THIS ARGUMENT.
FIRST, IT IS AN EXTREMELY STRAINED OVERALL READING OF THE STATUTE.
IF CONGRESS HAD MEANT TO REQUIRE A FORMAL HEARING ON THE ISSUANCE OF
RCRA PERMITS, IT WOULD HAVE STATED THAT INTENT IN THE SECTION
SPECIFICALLY CONCERNED WITH PERMIT ISSUANCE (SECTION 3005), NOT BY
INSERTING IT VIA THE BACK DOOR BY THE USE OF "ORDER" IN SECTION 3008.
INDEED, THE VERY SENTENCE IN SECTION 3008 REFERRED TO BY PROPONENTS
OF FORMAL HEARINGS REQUIRES SUCH HEARINGS FOR THE "SUSPENSION" OR A
"REVOCATION" OF A PERMIT ACTION IN DETAIL WHEN IT CHOSE TO, RATHER THAN
LEAVING SUCH PROCEDURES TO BE INFERRED FROM THE USE OF THE WORD "ORDER"
CAN PROPERLY BE READ TO INCLUDE PERMIT ACTIONS; IF IT DID INCLUDE
PERMIT ACTIONS, THE REFERENCE IN THE SAME SENTENCE TO PERMIT REVOCATIONS
AND SUSPENSIONS WOULD BE REDUNDANT, SINCE THEY ARE JUST AS MUCH "ORDERS"
WITHIN THE APA DEFINITION AS DECISIONS ON ISSUANCE.
SECOND, THOUGH THE TERM "ORDER" AS USED IN THIS SENTENCE IS NOT
EXPLICITLY DEFINED ANYWHERE IN RCRA, ITS MEANING AS DERIVED FROM THE
TEXT OF SECTION 3008 AS A WHOLE LEADS TO THE CONCLUSIONS THAT "ORDER"
DOES NOT HAVE THE APA MEANING.
SECTION 3008 IS ENTITLED "FEDERAL ENFORCEMENT," WHICH IN ITSELF LEADS
TO THE INFERENCE THAT THE EXCLUSIVE SUBJECT MATTER OF THAT SECTION IS
ENFORCEMENT. /10/ SUBSECTION 3008(A) IS ENTITLED "COMPLIANCE ORDERS".
THE THREE REFERENCES TO "ORDERS" IN THAT SUBSECTION OBVIOUSLY APPLY ONLY
TO "COMPLIANCE ORDERS". SIMILARLY, SUBSECTION (C) IS ENTITLED
"REQUIREMENTS OF COMPLIANCE ORDERS," AND THE ONE REFERENCE TO AN "ORDER"
IN THE SUBSECTION TEXT OBVIOUSLY REFERS TO A COMPLIANCE ORDER. THE
REFERENCE TO "ORDER" IN THE TEXT OF SUBSECTION (B) IS THE FIFTH AND LAST
REFERENCE TO AN "ORDER" IN THE TEXT OF SECTION 3008 AS A WHOLE. IT IS
CLEAR THAT THE OTHER FOUR REFERENCES MEAN ONLY COMPLIANCE ORDERS. YET
THE ARGUMENT FOR FORMAL HEARINGS DEPENDS ON GIVING THIS PARTICULAR USE
OF THE WORD A COMPLETELY DIFFERENT READING FROM THE OTHER FOUR, THOUGH
THERE IS NOTHING TO INDICATE THAT DIFFERENT READING WAS INTENDED. IT
SEEMS MUCH MORE LIGICAL TO ASSUME THAT THE DRAFTERS OF THIS SECTION
SIMPLY REFERRED TO "COMPLIANCE ORDERS" IN SUBSECTION HEADINGS, AND THEN
USED "ORDER" THROUGHOUT THE BODY OF THE TEXT AS A SHORTHAND FORM OF
REFERENCE.
THIRD, TO ADOPT THE APA DEFINITION OF "ORDER" HERE WOULD LEAD TO
ABSURD AND IMPRACTICAL RESULTS. IT WOULD REQUIRE A FORMAL HEARING FOR
ALL ACTIONS UNDER RCRA THAT FIT THE APA DEFINITION OF "ORDER:" A
DEFINITION THAT IS VERY BROAD AND INCLUDES MUCH MORE THAN SIMPLE PERMIT
ISSUANCE. IT WOULD INCLUDE, FOR EXAMPLE, ALL FINAL DECISIONS TO AWARD
OR DENY GRANTS UNDER SECTIONS 2004, 4007, 4008, 7007, 8001 AND 8006 OF
THE STATUTE, AS WELL AS DECISIONS TO PURCHASE OR NOT TO PURCHASE GIVEN
RECYCLED MATERIALS OR WASTE DISPOSAL SERVICES UNDER SECTION 6002. IT
MIGHT ALSO INCLUDE THE DENIAL OF A PETITION UNDER SECTION 3001 OR
SECTION 7004(A).
(B) THE LEGISLATIVE HISTORY. THE SENATE VERSION OF RCRA PROVIDED
THAT PERMITS COULD ONLY BE ISSUED OR DENIED AFTER "OPPORTUNITY FOR A
PUBLIC HEARING." THE HOUSE VERSION CONTAINED NO SUCH PROVISION. THE
TEXT OF THE FINAL STATUTE FOLLOWS THE HOUSE VERSION.
NEVERTHELESS, SOME COMMENTERS ARGUED THAT BECAUSE SENATOR RANDOLPH,
WHO ADDRESSED THE SENATE BEFORE FINAL PASSAGE AND SUMMARIZED THE CHANGES
MADE BETWEEN THE SENATE AND THE FINAL VERSION DID NOT REFER TO DROPPING
THE HEARING REQUIREMENT, IT MUST NOT HAVE BEEN DROPPED.
FIRST, THIS ARGUMENT OVERLOOKS THE FACT THAT THE FINAL VERSION
TRACKED THE HOUSE BILL, NOT THE SENATE BILL. SECOND, THE HOUSE DEBATES
ARE EQUALLY FREE FROM ANY MENTIONOF A CHANGE OF APPROACH. THUS, A
COUNTER-ARGUMENT CAN BE MADE THAT IF THE SENATE'S HEARING REQUIREMENT
HAD BEEN INSERTED, THE HOUSE WOULD CERTAINLY HAVE MENTIONED IT.
FINALLY, IT IS NOT AT ALL INCONCEIVABLE TO EPA THAT, IN THE BRIEF FLOOR
DEBATES ONTE FINAL PASSAGE OF RCRA, ANY REFERENCE TO PERMIT ISSUANCE
PROCEDURE WOULD SIMPLY HAVE BEEN OMITTED.
OTHER COMMENTERS ARGUED THAT THE PROPOSED EPA PERMIT PROCEDURES WHICH
PROVIDED FOR A "HYBRID" PUBLIC HEARING AND POTENTIAL FOR
CROSS-EXAMINATION WERE TOO FORMAL. THEY ALSO ARGUED THAT EPA HAD NO
LEGAL AUTHORITY TO IMPOSE PROCEDURES MORE ELABORATE THAN CONGRESS HAS
EXPLICITLY REQUIRED. ALTHOUGH EPA DISAGREES WITH THIS ARGUMENT, EPA HAS
ELIMINATED BOTH THE HYBRID PUBLIC HEARING AND THE OPPORTUNITY TO
CROSS-EXAMINE FROM THE PUBLIC HEARING STAGE. AS PREVIOUSLY DISCUSSED,
THERE ARE NOW ONLY THREE KINDS OF HEARINGS UNDER PART 124: A
LEGISLATIVE-TYPE PUBLIC HEARING, AN EVIDENTIARY HEARING AND A
NON-ADVERSARY PANEL HEARING.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 121 OF 225
COSTLE DM ADMINISTRATOR
EPA
113620
REGULATIONS
WHICH IT DID NOT REPORT USING OR MANUFACTUFING IN ITS PERMIT
APPLICATION. THIS PROVISION SUPPORTS OTHER NEW REGULATIONS REQUIRING
NPDES PERMITS TO CONTROL ANY TOXIC POLLUTANT USED OR MANUFACTURED BY THE
PERMITTEE. DISCHARGES ARE REQUIFED BY SECTION 122.53(D) TO REPORT THESE
POLLUTANTS IN THEIR PERMIT APPLICATIONS AND BY SECTION 122.61(A)(2) TO
NOTIFY THE DIRECTOR OF ANY NEW POLLUTANTS USED OR MANUFACTURED
THEREAFTER. THE DIRECTOR IS NOT REQUIRED TO MODIFY THE PERMIT UNLESS HE
OR SHE DETERMINES THAT MODIFICATION IS NECESSARY TO CONTROL THE
DISCHARGES OF THESE POLLUTANTS. A MORE DETAILED DISUCSSION APPEARS IN
THE PREAMBLE TO THE PUBLIC NOTICE OF THE CONSOLIDATED APPLICATION FORM.
(2) TO NARROW THE SCOPE OF CHANGES THAT CAN BE MADE IN THE PERMIT
ONCE CAUSE IS FOUND, THE CAUSES FOR MODIFICATION ONLY (FINAL SECTION
122.15(A), DISCUSSED IN PARAGRAPH (1) ABOVE) HAVE BEEN DISTINGUISHED
(EXCEPT FOR CLASS II AND III UIC WELLS) FROM CAUSES WHICH CAN GIVE RISE
TO EITHER A MODIFICATION OR A REVOCATION AND REISSUANCE (FINAL SECTION
122.15(B)). WHEN A PERMIT IS MODIFIED, ONLY THE PERMIT CONDITIONS TO BE
MODIFIED MAY BE REOPENED (SEE SECTION 124.5). WHEN A PERMIT IS REVOKED
AND REISSUED, THE ENTIRE PERMIT MUST BE REOPENED AND THE REISSUED PERMIT
MUST INCORPORATE ALL CURRENTLY APPLICABLE REQUIREMENTS (SEE SECTION
122.8). ("REVOCATION" IS USED IN THESE REGULATIONS ONLY AS PART OF THIS
"REVOCATION AND REISSUANCE." "REVOCATION" OF A PERMIT UNDER SECTION 3008
OF RCRA IS A FORM OF TERMINATION IN THESE REGULATIONS.) IF THE DIRECTOR
COULD USE ANY CAUSE FOR MODIFICATION AS AN OPPORTUNITY TO OPEN THE
ENTIRE PERMIT TO SCRUTINY AND MODIFICATION, IT WOULD DEFEAT THE PURPOSE
OF FIXED-TERM PERMITS COUPLED WITH SECURITY DURING THE TERM FOR
PERMITTEES. IT WOULD ALSO DEFEAT ANY NARROWING OF THE CAUSES FOR
MODIFICATION, BECAUSE A MODIFICATION NOT OTHERWISE AUTHORIZED COULD BE
BOOTSTRAPPED ONTO ONE THAT IS.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 122 OF 225
COSTLE DM ADMINISTRATOR
EPA
113621
REGULATIONS
HOWEVER, A PERMITTEE IS ALWAYS FREE TO REQUEST A REVOCATION AND
REISSUANCE RATHER THAN A MODIFICATION. SEE SECTION 124.5. WHEN THE
PERMITTEE REQUESTS, THE DIRECTOR IS FREE TO REVOKE AND REISSUE THE
PERMIT FOR ANY CAUSE IN SECTION 122.15(A) WHICH IS OTHERWISE LIMITED TO
MODIFICATION. IN MANY INSTANCES IT MAY BE IN THE PERMITTEE'S INTEREST
TO REQUEST REVOCATION AND REISSUANCE. FOR EXAMPLE, WHEN THE REMAINING
TERM OF THE PERMIT IS SHORT, THE PERMITTEE MAY PREFER THE CERTAINTY OF A
NEW 5 OR 10-YEAR PERMIT OVER A LIMITED MODIFICATION TO A PERMIT WHICH
MAY BE EXTENSIVELY REVISED AGAIN SOON DURING THE PERMIT-REISSUANCE
PROCESS.
ONLY TWO CAUSES APPEAR IN SECTION 122.15(B). FIRST, WHEN CAUSE FOR
TERMINATION EXISTS THE DIRECTOR MAY DETERMINE TO MODIFY OR,
ALTERNATIVELY, REVOKE AND REISSUE A PERMIT DURING ITS TERM AS A LESS
DRASTIC ALTERNATIVE TO TERMINATION.
SECOND, WHEN OWNERSHIP OR OPERATIONAL CONTROL OF A FACILITY IS
TRANSFERRED, THE PERMIT CAN ALSO EITHER BE MODIFIED, OR REVOKED AND
REISSUED (SECTION 122.15(B)(2)); SEE PREAMBLE DISCUSSION OF PERMIT
TRANSFERS UNDER SECTION 122.14. IN MANY CASES A MODIFICATION MAY BE
ADEQUATE TO REFLECT THE NAME OF THE NEW PERMITTEE; FOR EXAMPLE, A
TRANSFER OF CONTROL OF A FACILITY BETWEEN SUBSIDIARIES OF THE SAME
CORPORATION. IN OTHER CASES REVOCATION AND REISSUANCE WILL BE MORE
APPROPRIAT E. FOR EXAMPLE, FOR RCRA FACILITIES, PERMITTEES ARE REQUIRED
TO SUBMIT A CONTINGENCY PLAN AS PART OF THEIR PART B APPLICATIONS. THIS
PLAN INCLUDES SUCH MATTERS AS A LIST OF NAMES, ADDRESSES AND PHONE
NUMBERS OF ALL PERSONS QUALIFIED TO ACT AS FACILITY EMERGENCY
COORDINATORS. ONCE THE PERMIT APPLICATION IS APPROVED, THIS PLAN
BECOMES PART OF THE PERMIT. THERE ARE SEVERAL SIMILAR ITEMS WHICH ARE
SUBMITTED AS PART OF THE RCRA PERMIT APPLICATION. THIS INFORMATION
SHOULD BE PROVIDED BY THE NEW APPLICANT. AS A RESULT, A PERMIT
APPLICATION FOLLOWED BY ISSUANCE OF A NEW PERMIT WITH A FULL TERM MAY BE
MORE APPROPRIATE THAN A SIMPLE MODIFICATION OF THE PRIOR PERMIT.
SIMILARLY, A NEW PERMIT APPLICATION TO ASSURE AN UPDATED PLUGGING AND
ABANDONMENT PLAN (SECTION 122.42(A)) MAY BE APPROPRIATE FOR ANY UIC
FACILITY.
LIKEWISE, EXISTING INDUSTRIAL NPDES PERMITTEES ARE REQUIRED TO
PREDICT IN THEIR APPLICATIONS ANY EXPECTED LEVELS OF POLLUTANTS IN THEIR
EFFLUENTS WHICH MAY OVER THE NEXT FIVE YEARS (THE DURATION OF THE
PERMIT) EXCEED THE LEVELS FOUND THROUGH THE REQUIRED TESTING, AND TO
LIST ANY TOXIC POLLUTANTS WHICH THEY PRESENTLY USE OR MANUFACTURE OR
EXPECT THAT THEY WILL DURING THE NEXT FIVE YEARS. BECAUSE THESE
PREDICTIONS SHOULD BE BASED ON KNOWLEDGE OF WHAT TYPES OF OPERATIONS ARE
EXPECTED TO BE CONDUCTED OVER THE NEXT FIVE YEARS, IT MAY BE APPROPIRATE
FOR THE NEW PERMITTEE TO BE REQUIRED TO PROVIDE THIS INFORMATION IN A
NEW PERMIT APPLICATION, AND REVOKE AND REISSUE THE PERMIT.
(3) IN ORDER TO FURTHER NARROW THE SCOPE OF PERMISSIBLE PERMIT
MODIFICATIONS, PART OF THE PREAMBLE TO THE PROPOSAL HAS BEEN MOVED TO
THE TEXT OF THE PERMIT MODIFICATION SECTION, WHICH NOW STATES THAT FOR
RCRA AND UIC, "FACILITY SITING WILL NOT BE CONSIDERED AT THE TIME OF
PERMIT MODIFICATION OR REVOCATION AND REISSUANCE UNLESS NEW INFORMATION
OR STANDARDS INDICATE AN ENDANGERMENT TO HUMAN HEALTH OR THE ENVIRONMENT
WHICH WAS UNKNOWN AT THE TIME PERMIT ISSUANCE." THIS STATEMENT
EMPHASIZES THAT SITING CONDITIONS IN A PERMIT WILL NOT NORMALLY BE
MODIFIED AS A RESULT OF PERMIT REVIEW, AND LIMITS THE CIRCUMSTANCES
WHERE THE PERMIT TERMINATION CAUSE OF "ENDANGERMENT TO HUMAN HEALTH OF
THE ENVIRONMENT CAN BE USED AS A GROUNDS FOR MODIFYING SITING
CONDITIONS. HOWEVER, AN ENDANGERMENT TO HUMAN HEALTH OR THE ENVIRONMENT
IS STILL CAUSE FOR TERMINATING A PERMIT IF THAT IS THE ONLY WAY THAT THE
THREAT CAN BE DEALT WITH.
IN GENERAL, COMMENTERS ON PROPOSED SECTION 122.10 (NOW SECTION
122.16) SOUGHT GREATER SPECIFICITY REGARDING CAUSES FOR TERMINATION AND
LESS BREADTH IN THEIR POSSIBLE APPLICATION, SUCH AS LIMITING
TERMINATIONS TO "WILLFULL AND PERSISTENT" VIOLATIONS OF A PERMIT OR
"INTENTIONAL" FAILURE TO DISCLOSE RELEVANT FACTS. MANY THOUGHT ABUSES
COULD RESULT FROM ARBITRARY APPLICATION OF THE CAUSES AS PROPOSED.
EPA BELIEVES THAT CAUSES FOR TERMINATION MUST BE BROADLY WORDED SO
THAT A BASIS FOR INITIATING PERMIT TERMINATION PROCEEDINGS IS AVAILABLE
WHEN THE NEED IS PRESENT. MOST ATTEMPTS TO NARROWLY DEFINE THE
BOUNDARIES OF CAUSE ARE INADEQUATE BECAUSE THEY MUST BE INVOKED IN A
WIDE VARIETY OF CIRCUMSTANCES DEPENDING ON THE EXERCISE OF ENFORCEMENT
DISCRETION.
THE PROPOSED SECTION NEGLECTED TO STATE THAT TERMINATIONS ARE SUBJECT
TO THE SAME PART 124 (OR APPLICABLE STATE) PROVISIONS FOR NOTICE AND
OPPORTUNITY FOR A HEARING APPLICABLE TO OTHER PERMIT ACTIONS. THIS
OVERSIGHT HAS BEEN CORRECTED. EPA BELIEVES THAT THESE ADMINISTRATIVE
PROVISIONS AND, ULTIMATELY, THE POSSIBILITY OF JUDICIAL REVIEW, SHOULD
PROVIDE THE PROTECTION WHICH COMMENTERS ARE SEEKING ABAINST ARBITRARY
APPLICATION OF BRAODLY-WORDED CAUSES FOR TERMINATION. THUS, PERMITTEES
WILL HAVE AN OPPORTUNITY TO REFUTE CLAIMS SUCH AS THAT THERE IS AN
ENDANGERMENT TO HUMAN HEALTH OR THE ENVIRONMENT, OR THAT PERMIT
VIOLATIONS WERE SIGNIFICANT. THE OBJECTIVE IS NOT TO TRY TO DESCRIBE
PRECISELY THE CIRCUMSTANCES WHICH PROVIDE GROUNDS FOR TERMINATION, WHICH
IS IMPOSSIBLE, BUT TO SUBJECT SUCH DETERMINATIONS TO THE PROCEDURAL
PROTECTIONS OF PART 124 AND JUDICIAL REVIEW.
SEVERAL COMMENTERS DISCUSSED THE PROVISIONS OF RCRA SECTION 3008 AS
THEY RELATE TO TERMINATIONS UNDER THIS SECTION. EPA HAS CONCLUDED THAT
THE PROCEDURES SET FORTH IN PART 124, SUBPART E, SATISFY THE
REQUIREMENTS OF SECTION 3008 FOR A FORMAL EVIDENTIARY HEARING IN CASES
OF PERMIT "SUSPENSION OR REVOCATION." THE PROCEDURES OF 40 CFR PART 22
WILL NO LONGER APPLY TORCRA PERMIT TERMINATIONS.
AS NOTED IN THE PREAMBLE TO THE PROPOSAL, "TERMINATION IS ESSENTIALLY
AN ENFORCEMENT MECHANISM." THE DIRECTOR OF A PERMIT PROGRAM MUST
CAREFULLY EXERCISE DISCRETION IN ALLOCATING SCARCE "ENFORCEMENT"
RESOURCES. BECAUSE OF THESE LIMITATIONS ON RESOURCES, IT MAKES NO SENSE
TO ENFORCE AGAINST TRIVIAL INFRACTIONS WHEN UNREMEDIED SUBSTANTIAL
INFRACTIONS EXIST. THIS ALONE IN MOST CASES SHOULD PREVENT THE DIRECTOR
FROM READING THE TERMINATION CAUSES TOO BROADLY. IT SHOULD ALSO BE
CLEAR THAT IN MOST CASES LESS DRASTIC ACTIONS, SUCH AS PERMIT
MODIFICATIONS, ARE AVAILABLE. PROPOSED SECTION 122.9 STATED THAT FOR
NPDES AND 404 PERMITS, CAUSES FOR TERMINATION COULD ALSO BE CAUSES FOR
MODIFICATION OR REVOCATION AND REISSUANCE, THEREBY IMPLYING THAT THIS
WAS NOT SO FOR RCRA OR UIC. THE WORDING HAS BEEN CHANGED TO INCLUDE
RCRA AND UIC. THIS DOES NOT MEAN, HOWEVER, THAT IF TERMINATION IS NOT
CHOSEN, MODIFICATION IS MANDATORY. IN SOME CASES NEITHER TERMINATTION
NOR MODIFICATION MAY BE APPROPRIATE.
SOME CHANGES IN THE CAUSES FOR TERMINATION WERE NECESSARY BECAUSE
THEY ALSO SERVE AS CAUSES FOR MODIFYING OR REVOKING AND REISSUING
PERMITS DURING THEIR TERMS (SEE SECTION 122.15(B)(1)). PERMITS MAY BE
TERMINATED EVEN THOUGH, AS NOW PROVIDED IN SECTION 122.13, "COMPLIANCE
WITH A PERMIT IS COMPLIANCE WITH THE APPROPRIATE ACT." HOWEVER, IF
NONCOMPLIANCE WITH THE APPROPRIATE ACT COULD BE GROUNDS FOR TERMIN-TION
ABSENT A PERMIT CONDITION WHICH INCORPORATES A SPECIFIC REQUIREMENT OF
THE ACT, THE "SHIELD" PROVISION OF SECTION 122.13 WOULD HAVE LIMITED
EFFECT. CONSEQENTLY, SECTION 122.16(A)(1) (PROPOSED SECTION
122.10(B)(A)) HAS BEEN NARROWED TO EXCLUDE VIOLATIONS OF THE APPROPRIATE
ACT AS AN INDEPENDENT CAUSE FOR TERMINATION. IT NOW READS
"NONCOMPLIANCE BY THE PERMITTEE WITH ANY CONDITION OF THE PERMIT."
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 123 OF 225
COSTLE DM ADMINISTRATOR
EPA
113622
REGULATIONS
/11/ THESE RULES WERE PROMULGATED IN FINAL FORM ON APRIL 9, 1980. 45
FR 24360.
/12/ ONE COMMENTER ARGUED THAT THE PROVISION IN PROPOSED SECTION
124.11(A) FOR A MINIMUM 30 DAY NOTICE OF A PUBLIC HEARING CONFLICTED
WITH THE REQUIREMENT IN 40 CFR SECTION 25.5 FOR A MINIMUM 45 DAY NOTICE
PERIOD. HOWEVER, SECTION 122.1(E) PROVIDES THAT THESE REGULATIONS
SUPERSEDE PART 25 AS IT APPLIES TO ACTIONS COVERED BY PARTS 122 THROUGH
124.
EPA RECOGNIZES THAT SOME RCRA AND UIC PERMITS MAY RAISE ISSUES BETTER
SUITED TO A MORE FORMALIZED MECHANISM FOR DISCUSSION THAN THAT PROVIDED
BY THE TRADITIONAL PUBLIC HEARING AND HAS AMENDED THE FINAL REGULATIONS
TO ALLOW THE DIRECTOR TO USE THE "NON-ADVERSARY PANEL HEARING"
PROCEDURES IN SUBPART F, EVEN IF THOSE PERMITS WERE NOT CONSOLIDATED
WITH PERMITS REQUIRING A PANEL HEARING. NO COMPARABLE PROVISION HAS
BEEN MADE FOR PSD PERMITS BECAUSE OF THE POTENTIAL FOR DELAY.
AS NOTED ABOVE, RCRA AND SDWA DO NOT REQUIRE ANY HEARING BEFORE
PERMITS ARE ISSUED. ACCORDINGLY, IN PROVIDING THE DIRECTOR WITH A RANGE
OF CHOICES UNDER THESE REGULATIONS, EPA TAKES THE POSITION THAT NO
PARTICULAR FORM OF HEARING IS REQUIRED FOR THESE PERMITS. THE DIRECTOR
IS GIVEN DISCRETION TO CHOOSE THE PROCEDURES THAT APPEAR LIKELY TO
RESULT IN THE BEST DECISION UNDER THE CIRCUMSTANCES OF THE CASE.
EPA HAS PREVIOUSLY SAID THAT A FORMAL APA HEARING IS REQUIRED UNDER
SECTION 3008 FOR TERMINATION OF A RCRA PERMIT. SEE 43 FR 34730 (AUGUST
4, 1978). TERMINATION OF A PERMIT IS VERY LIKELY TO REST ON AN
"ACCUSATORY" DETERMINATION THAT STANDARDS ESTABLISHED IN THE PAST HAVE
NOT BEEN MET, RATHER THAN ON A JUDGMENT OF WHAT THE GOALS OF THE
STATUTEREQUIRE BY WAY OF CONTROL REQUIREMENTS, WHICH IS LIKELY TO BE THE
CASE FOR INITIAL PERMIT DECISIONS.
EPA PREVIOUSLY HAD PROPOSED PROCEDURES FOR TERMINATING RCRA PERMITS
AS PART OF EPA'S CONSOLIDATED RULES FOR ASSESSING CIVIL PENALTIES AND
REVOKING OR SUSPENDING PERMITS. SEE 43 FR 34730 (AUG 4, 1978). /11/
EPA HAS NOW DECIDED THAT THESE PROCEDURES SHOULD INSTEAD BE CONSOLIDATED
WITH THE FORMAL HEARINGS IN PART 124 FOR NPDES PERMITS. THIS WILL
PROVIDE A GREATER MEASURE OF PROCEDURAL CONSOLIDATION AMONG DIFFERENT
EPA PERMIT PROGRAMS THAN THE APPROACH ORIGINALLY PROPOSED. IN ADDITION,
THE NPDES PROCEDURES ARE SOMEWHAT BETTER ADAPTED THAN THE OTHERS TO
HANDLE COMPLICATED FACTUAL RECORDS OF THE SORT THAT MAY WELL BE INVOLVED
IN A RCRA PERMIT TERMINATION. AS THE PREAMBLE TO PART 122 STATES, THESE
PROCEDURES ALSO APPLY WHEN "INTERIM STATUS' IS TERMINATED FOR FAILURE TO
FURNISH INFORMATION NECESSARY TO MAKE A FINAL DECISION.
EPA BELIEVES THAT RCRA PERMIT MODIFICATIONS UNDER SECTION 122.15 AND
REVOCATION AND REISSUANCE (WHICH AMOUNTS IN EFFECT TO A MODIFICATION)
SHOULD BE HANDLED BY THE PROCEDURES USED FOR PERMIT ISSUANCE, RATHER
THAN THOSE USED FOR PERMIT TERMINATION. ALTHOUGH THE STATUTE IS NOT
EXPLICIT ON THIS POINT, THE ONLY REFERENCE TO "MODIFICATION" IS IN
SECTION 3005 AND NOT IN SECTION 3008.
IN ADDITION, THE GENERAL SCHEME OF THE STATUTE IS TO PROVIDE FOR
REGULATORY ACTIVITIES (WHERE NO HEARING IS REQUIRED) IN SECTION 3005 AND
ACTIVITIES OF A PURELY ENFORCEMENT NATURE (WHERE A FORMAL HEARING IS
REQUIRED) IN SECTION 3008. THUS, SECTION 3005 ALLOWS THE COMPLETE
DENIAL OF A RCRA PERMIT, RESULTING IN SITE CLOSING, WITHOUT ANY
STATUTORY HEARING REQUIREMENT. SECTION 3008, ON THE OTHER HAND, IS
ENTITLED "FEDERAL ENFORCEMENT" AND COVERS CRIMINAL AND CIVIL PENALTIES
AS WELL AS PERMIT ACTIONS. THE PERMIT ACTIONS COVERED ARE "SUSPENSION
AND "REVOCATION," BOTH OF WHICH DESCRIBE THE COMPLETE REMOVAL OF A
PERMIT.
AGAINST THIS BACKGROUND, EPA BELIEVES THAT CHANGES IN REGULATORY
REQUIREMENTS WHICH DO NOT RESULT IN REMOVAL OF THE PERMIT SHOULD BE
HANDLED UNDER SECTION 3005 PROCEDURES INSTEAD OF SECTION 3008
PROCEDURES. THE DECISION WILL NOT INVOLVE JUDGMENTS OF WRONG-DOING AND
PUNISHMENT FOR WHICH SECTION 3008 WAS DESIGNED; RATHER IT WILL INVOLVE
IMPOSING THE REGULATORY REQUIREMENTS BEST ADAPTED TO CARRY OUT THE
STATUTORY INTENT FOR WHICH SECTION 3005 WAS DESIGNED.
FOR THESE REASONS EPA HAS REJECTED COMMENTS ARGUING THAT ANY PERMIT
MODIFICATION WAS IN EFFECT A "REVOCATION" OF THE SUPERSEDED CONDITIONS
AND THEREFORE HAD TO BE SUBJECT TO SECTION 3008. SECTION 3008 SPEAKS IN
TERMS OF "REVOCATION" AND "SUSPENSION" OF WHOLE PERMITS, NOT OF
INDIVIDUAL CONDITIONS. EPA INTERPRETS THIS TO REFER TO THE PERMIT AS A
WHOLE, NAMELY THE AUTHORIZATION TO OPERATE. A CONTRARY CONCLUSION WOULD
LEAD TO THE RESULT THAT EVEN PERMIT MODIFICATIONS WHICH MAKE THE PERMIT
MORE LENIENT MUST BE TREATED AS "REVOCATIONS" UNDER THE STATUTE, SINCE
THE CONDITIONS WHICH WERE NO LONGER BINDING WOULD, AFTER ALL, HAVE BEEN
"REVOKED."
(1) MANY COMMENTERS ARGUED THAT IT WOULD BE IMPOSSIBLE TO PROVIDE ALL
THE INFORMATION AND ARGUMENTS THIS SECTION CALLS FOR WITHIN 30 DAYS IF A
PERMIT WERE CONTROVERSIAL OR COMPLICATED. EPA AGREES. THE 30 DAYS IS
INTENDED TO BE THE MINIMUM COMMENT PERIOD FOR ALL PERMITS. THIS SECTION
HAS BEEN CHANGED TO STATE THAT LONGER COMMENT PERIODS SHOULD BE FREELY
ESTABLISHED IN COMPLICATED CASES. /12/
(2) OTHER COMMENTERS URGED THAT THIS SECTION BE AMENDED TO LIMIT THE
EXTENT TO WHICH POINTS MUST BE RAISED AND INFORMATION PROVIDED DURING
THE PUBLIC COMMENT PERIOD.
THESE COMMENTS HAVE BEEN REJECTED. AS APPLIED TO THE NPDES PROGRAM,
THE REASONS FOR REJECTING THESE COMMENTS ARE SET FORTH IN THE PREAMBLE
TO EPA'S FINAL NPDES REGULATIONS, 44 FR 32884-85 (JUNE 7, 1979). IT
WOULD BE ILLOGICAL TO ACCEPT THIS COMMENT WITH RESPECT TO RCRA, UIC, OR
PSD PERMITS BECAUSE THE PUBLIC COMMENT ON DRAFT RCRA, UIC, OR PSD
PERMITS IS THE EXCLUSIVE MECHANISM FOR GATHERING FACTS AND ARGUMENTS
RELATING TO SUCH DRAFT PERMITS. THE LATER STAGES ARE APPELLATE IN
NATURE AND NEW ISSUES SHOULD NOT BE RAISED ON APPEAL.
(1) SEVERAL COMMENTERS POINTED OUT THAT THE PROVISION WHICH MAKES A
PERMIT EFFECTIVE 30 DAYS AFTER ITS ISSUANCE WOULD LEAVE THE FACILITY
WITHOUT A VALID PERMIT DURING THAT PERIOD. THIS POTENTIAL PROBLEM WOULD
BE AGGRAVATED, SO THE ARGUMENT GOES, BY THE PROVISION ALLOWING THE
REGIONAL ADMINISTRATOR TO EXTEND BEYOND 30 DAYS THE DATE ON WICH THE
PERMIT BECAMDE EFFECTIVE.
EPA HAS NOT ACCEPTED THIS COMMENT. IF THE PERMIT IN QUESTION IS A
RENEWAL PERMIT UNDER SECTION 122.9, THE ORIGINAL PERMIT REMAINS IN
EFFECT UNTIL IT IS SUPERSEDED, IN WHOLE OR IN PART, BY A NEW PERMIT.
SEE ALSO SECTION 124.60. A NEW PERMIT MAY BECOME EFFECTIVE IMMEDIATELY
WHERE NO ADVERSE COMMENTS ARE RECEIVED. ANY DELAY IS A NECESSARY PART
OF A PARTY'S RIGHT TO REQUEST ON EVIDENTARY HEARING.
(1) ONE COMMENTER URGED THAT THIS PROVISION BE AMENDED TO ALLOW STAYS
WHILE REQUESTS FOR FURTHER PROCEEDINGS WERE PENDING. THE WAY THE
"EFFECTIVE DATE" OF THE PERMIT IS HANDLED UNDER SECTION 124.15
ACCOMPLISHES THIS RESULT AUTOMATICALLY.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 124 OF 225
COSTLE DM ADMINISTRATOR
EPA
113623
REGULATIONS
(2) SEVERAL COMMENTERS ARGUED AGAINST THE PROVISION IN PROPOSED
SECTION 124.18(B) FOR STAYS BASED ON CROSS-EFFECTS. BUT BECAUSE NO
COMMENTER OFFERED ANY ALTERNATIVE WAY TO DEAL WITH THE PROBLEMS AT WHICH
THE SECTION IS AIMED, THE PROVISION REMAINS UNCHANGED.
(3) OTHER COMMENTERS URGED THAT PERMITS (PARTICULARLY PERMITS FOR NEW
FACILITIES) SHOULD NOT BE STAYED PENDING AGENCY APPEAL PROCEEDINGS.
THIS COMMENT HAS NOT BEEN ACCEPTED FOR THE REASONS STATED IN THE FINAL
NPDES REGULATIONS. SEE 44 FR 32863-32884 (JUNE 7, 1979).
IN ADDITION, UNDER 5 U.S.C. 704, IF THE PERMIT IS NOT STAYED, IT
BECOMES JUDICIALLY REVIEWABLE IMMEDIATELY. THIS RESULT MAKES LITTLE
SENSE IF AN APPEAL WITHIN THE AGENCY IS PENDING, SINCE BOTH THE COURT
AND THE AGENCY WOULD BE REVIEWING THE SAME PERMIT SIMULTANEOUSLY.
HOWEVER, IN CASES WHERE AN EVIDENTIARY HEARING IS GRANTED ON AN NPDES
PERMIT (OR ON RCRA OR UIC PERMIT CONDITIONS WHICH ARE ASSOCIATED WITH AN
NPDES PERMIT), EPA, IN RECOGNITION OF THE TIME IT TAKES TO CONDUCT THESE
HEARINGS, HAS PROVIDED A MECHANISM (SECTION 124.60) BY WHICH THE
PRESIDING OFFICER AT THE HEARING CAN AUTHORIZE OPERATIONS TO BEGIN
BEFORE THE DATE OF FINAL AGENCY ACTION IF CERTAIN CONDITIONS ARE MET.
THESE CONDITIONS ARE BASED ON THOSE NORMALLY REQUIRED FOR ISSUANCE OF A
PRELIMINARY INJUNCTION.
ONE COMMENTER ATTACKED THE STATEMENT IN THE "COMMENT" IN PROPOSED
SECTION 129.19 (NOW A PART OF THE REGULATIONS) THAT EPA COULD DOCUMENT
ITS RESPONSE TO COMMENTS BY ADDING NEW MATERIAL TO THE ADMINISTRATIVE
RECORD. THE COMMENTER ARGUED THAT THIS WOULD VIOLATE THE STANDARDS SET
OUT IN PORTLAND CEMENT ASS'N V. RUCKELSHAUS, 486 F. 2D 375, 393-94 (D.C.
CIR. 1973). EPA DISAGREES. THAT CASE ADDRESSED ONLY THE DISCLOSURE OF
DATA ON WHICH A PROPOSED RULE IS BASED. OF COURSE, THERE IS NO REASON
WHY THE AGENCY CANNOT DOCUMENT IN ADVANCE THE COURSE OF ACTION WHICH IT
ITSELF IS PROPOSING. WHAT IS INVOLVED HERE IS A RESPONSE TO COMMENTS;
NOT A PROPOSAL. THE SUBSTANCE OF THOSE COMMENTS WILL NOT BE KNOWN TO
EPA IN ADVANCE SINCE ONE OF THE MAJOR PURPOSES OF A COMMENT PERIOD IS TO
BRING NEW MATERIAL TO THE AGENCY'S ATTENTION. ACCORDINGLY, IT MAY OFTEN
BE IMPOSSIBLE FOR THE AGENCY TO RESPOND WITHOUT MAKING USE OF NEW
MATERIAL.
MANY CASES HOLD THAT AN AGENCY NEED NOT REPROPOSE AN ACTION IF
CHANGES ARE MADE FORM THE PROPOSAL. SEE, E.G., INTERNATIONAL HARVESTER
CO. V. RUCKELSHAUS, 478 F. 2D 615, 632 N. 51 (D.D. CIR. 1973), WHICH
NOTES THAT RULEMAKING MIGHT NEVER END IF EVERY CHANGE FROM THE PROPOSAL
REQUIRED REPROPOSAL.
SIMILARLY, IF ALL NEW MATERIAL IN A RESPONSE TO COMMENTS REQUIRED
REPROPOSAL, THE AGENCY WOULD BE PUT TO THE UNACCEPTABLE CHOICE OF EITHER
PROVIDING AN INADEQUATE RESPONSE OR EMBARKING ON THE SAME KIND OF
ENDLESS CYCLE OF REPROPOSALS WHICH THE COURTS HAVE ALREADY REJECTED.
ONE COMMENTER URGED THAT THE ADMINISTRATIVE RECORD SHOULD BE COMPLETE
WITHIN 20 DAYS AFTER A FINAL PERMIT IS ISSUED, SO THAT THOSE WHO MIGHT
WISH TO REQUEST FURTHER PROCEEDINGS COULD MAKE AN INFORMED DECISION ON
WHETHER TO GO FORWARD.
IN RESPONSE, EPA HAS CHANGED THIS SECTION TO PROVIDE THAT THE
ADMINISTRATIVE RECORD SHALL BE COMPLETE ON THE DATE THE PERMIT IS
ISSUED. BY REQUIRING THE RECORD TO BE ASSEMBLED BEFORE THE PERMIT IS
ISSUED, EPA HAS ENSURED THAT THE REGIONAL ADMINISTRATOR CAN BASE FINAL
DECISIONS ON THE ADMINISTRATIVE RECORD AS A WHOLE.
(1) A NUMBER OF COMMENTERS OBJECTED TO THE SUBSTANTIAL SHOWING
REQUORED TO JUSTIFY AN APPEAL TO THE ADMINISTRATOR. WE AGREE WITH THOSE
COMMENTERS WHO STATED THAT THE ADMINISTRATOR HAS A BROAD POWER TO REVIEW
DECISIONS UNDER THESE PROGRAMS. HOWEVER, EPA'S INTENT IN PROMULGATING
THESE REGULATIONS IS THAT (1) THIS POWER OF REVIEW SHOULD BE ONLY
SPARINGLY EXERCISED; (2) MOST PERMIT CONDITIONS SHOULD BE FINALLY
DETERMINED AT THE REGIONAL LEVEL; AND (3) REVIEW BY THE ADMINISTRATOR
SHOULD BE CONFINED TO CASES WHICH ARE IMPORTANT FOR THE PROGRAM AS A
WHOLE, OR ARE ESPECIALLY IMPORTANT IN THEIR OWN RIGHT. THE PROPOSED
THRESHOLD SHOWING IS INTENDED TO FURTHER THAT PORPOSE AND HAS BEEN
RETAINED.
(2) EPA REJECTS THE SUGGESTION FOR A 45-DAY TIME LIMIT ON SUA SPONTE
REVIEW BY THE ADMINISTRATOR. THE 30-DAY TIME LIMIT UNDER THIS SECTION
PARALLELS THE 30-DAY PERIOD BETWEEN THE DATE THE PERMIT IS ISSUED AND
THE DATE IT BECOMES EFFECTIVE UNDER SECTION 124.15.
(3) ONE COMMENTER SUGGESTED THAT THE REGULATIONS EXPLICITLY REQUIRE
THE ADMINISTRATOR TO MAKE FINDINGS WHEN DECIDING AN APPEAL. HOWEVER,
BECAUSE THIS REQUIREMENT IS IMPLICIT IN THE ESTABLISHMENT OF A MECHANISM
OF APPELLATE REVIEW ITSELF, NO CHANGE IN THE REGULATIONS IS NECESSARY.
(4) ONE COMMENTER OBJECTED TO PSD APPEALS ON THE GROUNDS OF DELAY.
EPA BELIEVES THAT AN APPEAL MECHANISM IS NECESSARY TO ENSURE CONSISTENCY
IN A NATIONAL PROGRAM AND TO PROVIDE CENTRAL POLICY GUIDANCE. THE BEST
EVIDENCE IS THE ONGOING INFORMAL APPEAL OF PSD PERMITS WITHIN EPA TAKING
PLACE WITHOUT EXPLICIT REGULATORY PROVISIONS.
(5) ANOTHER COMMENTER SUGGESTED THAT A PERMITTEE BE ALLOWED TO APPEAL
A PERMIT ON WHICH IT HAD NOT COMMENTED IN ORDER TO ADDRESS THE
POSSIBILITY THAT THE DRAFT PERMIT MIGHT HAVE BEEN ACCEPTABLE TO THE
PERMITTEE WHILE THE FINAL PERMIT CONTAINED UNFAVORABLE CHANGES. THIS
COMMENT HAS BEEN ACCEPTED AND EXPANDED TO ALLOW AN APPEAL OF THE FINAL
PERMIT BY PERSONS WHO FAILED TO COMMENT ON THE DRAFT PERMIT. THE SCOPE
OF SUCH AN APPEAL, HOWEVER, IS LIMITED TO WHATEVER CHANGES OCCURRED
BETWEEN THE DRAFT AND THE FINAL PERMIT.
THIS SECTION HAS BEEN AMENDED TO INCLUDE METHODS FOR COMPUTING TIME
THAT CONFORM WITH THE FEDERAL RULES OF CIVIL PROCEDURE.
EPA HAS DELETED PROPOSED SECTION 124.31 FROM THE FINAL CONSOLIDATED
REGULATIONS. ALTHOUGH THE PREAMBLE TO THE PROPOSAL STATED THAT THIS
SECTION WOULD ENSURE FULL PUBLIC PARTICIPATION IN THE RCRA PERMIT
DECISION PROCESS, SEE 44 FR 34266, EPA HAS DECIDED THAT THIS FUNCTION IS
SERVED EQUALLY WELL FOR ALL THE PERMIT PROGRAMS AT THE GENERAL PUBLIC
NOTICE STAGE UNDER SECTION 124.10 AND THAT DUAL NOTIFICATION FOR RCRA
APPLICATIONS IS, THEREFORE, UNNECESSARY. THE METHODS OF PUBLIC NOTICE
CONTAINED IN SECTION 124.10 HAVE BEEN SPECIFICALLY DESIGNED TO ENCOURAGE
PUBLIC PARTICIPATION IN THE PERMIT DECISION PROCESS NO MATTER WHAT KIND
OF PERMIT IS INVOLVED. EPA RECOGNIZES THAT RCRA PERMITTING MIGHT BE
CONTROVERSIAL AND EXPECTS TO CONDUCT PUBLIC HEARINGS UNDER SECTION
124.12 WHERE ANY INTERESTED PERSON MAY SUBMIT ORAL OR WRITTEN STATEMENTS
AND DATA ON THE RCRA ISSUES.
MANY COMMENTERS, BESIDE GENERALLY OPPOSING THE NOTION OF
CONSOLIDATION, PARTICULARLY CRITICIZED THE INCLUSION OF PSD IN THE
CONSOLIDATION EFFORT. THESE COMMENTERS ARGUED THAT AS PSD IS A
PRECONSTRUCTION REVIEW PROGRAM, THE TIME FOR CONSIDERING PSD ISSUES WILL
NOT BE THE SAME AS THE TIME FOR CONSIDERING ISSUES INVOLVING OTHER
PERMITS.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 125 OF 225
COSTLE DM ADMINISTRATOR
EPA
113624
REGULATIONS
THEY ALSO ARGUED THAT EPA HAS MADE THE PROCEDURES FOR ISSUING PSD
PERMITS MORE COMPLICATED AND TIME-CONSUMING, LEADING TO CONFUSION IN THE
ALLOCATION OF INCREMENTS.
EPA HAS NOT ACCEPTED THESE COMMENTS. FIRST, PSD DOES NOT DIFFER FROM
THE OTHER PROGRAMS INCLUDED IN THIS PART IN BEING A PRECONSTRUCTION
REQUIREMENT. AS EXPLAINED EARLIER, EPA'S POSITION IS THAT NEW HWM
FACILITIES, NPDES NEW SOURCES AND UNDERGROUND INJECTION WELLS ALSO MUST
HAVE THEIR PERMIT IN HAND BEFORE CONSTRUCTION CAN BEGIN. INCLUSION OF
PSD, THEREFORE, SHOULD NOT STRAIN PERMIT PROCESSING SCHEDULES.
SECOND, THE PROCEDURES FOR ISSUING A PSD PERMIT BY ITSELF HAVE NOT
BEEN MADE MORE COMPLICATED. THE ONLY SIGNIFICANT CHANGE (SECTION
124.19) AND THE ONLY ONE STRESSED IN COMMENTS, IS THE PROVISION OF A
FORMAL OPPORTUNITY TO APPEAL A PSD PERMIT TO THE ADMINISTRATOR. SUCH
APPEALS ARE ALREADY MADE (USUALLY AT INDUSTRY'S INITIATIVE) AND
CONSIDERED, EVEN THOUGH THE RULES DO NOT PROVIDE FOR THEM.
SOME NEW PROCEDURES HAVE BEEN ADDED TO ENABLE A SINGLE PROCEEDING TO
HANDLE MORE THAN ONE PERMIT. AS EXPLAINED IN DETAIL ABOVE, ALTHOUGH
THIS MAY SLOW DOWN ISSUANCE OF THE FIRST PERMIT, IT IS VERY LIKELY TO
PRODUCE BETTER DECISIONS AND TO SPEED UP ISSUANCE OF THE LAST PERMIT,
THEREBY REDUCING DELAY IN REACHING THE ACTUAL ON-LINE DATE FOR THE
FACILITY.
EPA HAS NO REASON TO EXPECT, THEREFORE, THAT INCLUDING PSD IN THE
CONSOLIDATED PERMIT REGULATIONS WILL MAKE ANY GREAT DIFFERENCE IN THE
EPA-ADMINISTERED PSD PERMIT PROGRAM. IT FOLLOWS THAT EPA HAS NO REASON
TO EXPECT ANY ADVERSE EFFECT ON PROCESSING OF PERMIT APPLICATIONS AND
ALLOCATING INCREMENTS ON A FIRST-IN, FIRST-OUT BASIS.
THE PSD PROGRAM
ALTHOUGH THE PSD PROGRAM IS STILL PART OF THESE REGULATIONS, EPA HAS
MADE A CONSIDERABLE NUMBER OF CHANGES TO ACCOMODATE IT. THE MAJOR
CHANGES FOLLOW:
1. PROPOSED SECTION 124.41 ESTABLISHED SPECIAL PROCEDURES FOR
PERMITTING "SMALL SOURCES." THE ALABAMA POWER DECISION IN EFFECT HAS
ELIMINATED THAT CATEGORY OF SOURCES FROM MANDATORY PSD COVERAGE, AND SO
THE SECTION AS PROPOSED HAS BEEN DROPPED.
2. PROPOSED SECTION 124.41 HAS BEEN CHANGED TO CLARIFY THE STATUS OF
A STATE AGENCY TO WHICH EPA HAS DELEGATED OR MAY DELEGATE AUTHORITY TO
ADMINISTER THESE REGULATIONS. (ALTHOUGH REGULATORY AUTHORITY FOR STATE
DELEGATIONS IS PRESENTLY FOUND IN 40 CFR SECTION 52.21(V), THIS
PROVISION MAY BE CHANGED AS A RESULT OF THE PENDING AMENDMENTS TO THE
PSD REGULATIONS.) FOR THE PURPOSES OF PART 124, A DELEGATE STATE STANDS
IN THE SHOES OF THE REGIONAL ADMINISTRATOR. LIKE THE REGIONAL
ADMINISTRATOR, THE DELEGATE MUST FOLLOW THE PROCEDURAL REQUIREMENTS OF
PART 124. ANY PERSON AGGRIEVED BY A PSD PERMIT ISSUED BY A DELEGATE MAY
APPEAL TO THE ADMINISTRATOR UNDER SECTION 124.19. DELEGATION UNDER
SECTION 52.21(V) (OR ANY SUCCESSOR PROVISION) IS DISTINCT FORM TRANSFER
OF THE PSD PROGRAM TO A STATE BY REVISIONS TO A STATE IMPLEMENTATION
PLAN UNDER CAA SECTION 110. A PERMIT ISSUED BY A DELEGATE IS STILL AN
"EPA-ISSUED PERMIT"; A PERMIT ISSUED BY A TRANSFEREE STATE IS A
"STATE-ISSUED PERMIT." PART 124 DOES NOT APPLY TO STATE-ISSUED PSD
PERMITS. SEE SECTION 124.1(D).
3. PROPOSED SECTION 124.41 CONTAINS DEFINITIONS DESIGNED TO CLARIFY
THE RELATIONSHIP BETWEEN PART 124 AND THE PSD PROGRAM, AND TO HELP
ENSURE THAT PORTIONS OF PART 122 ARE NOT INADVERTENTLY MADE APPLICABLE
TO PSD.
4. SECTION 165(D)(2) (C) AND (D) OF THE CLEAN AIR ACT, AND 40 CFR
SECTION 52.21(Q) PROVIDE A COMPLICATED SERIES OF VARIANCES AND
EXEMPTIONS WHICH MAY BE APPLIED TO THE PSD PERMIT FOR A SOURCE THAT WILL
AFFECT A CLASS I AREA. SECTION 124.42 RELATES THESE PROVISIONS TO THE
PART 124 PROCEDURES. IT PROVIDES THAT PERMIT CONDITIONS THAT EPA MAY
GRANT OR DENY MUST, LIKE ANY OTHER PERMIT CONDITION, BE REQUESTED AND
DOCUMENTED BEFORE THE CLOSE OF THE PUBLIC COMMENT PERIOD. PERMIT
PROVISIONS WHICH FOLLOW FROM A DECISION BY THE GOVERNOR OF THE STATE IN
QUESTION, OR BY THE PRESIDENT, WILL BE MADE OUTSIDE THE FRAMEWORK OF
PART 124 AND AUTOMATICALLY REFLECTED IN THE PERMIT.
5. SECTION 124.74 HAS BEEN AMENDED SO THAT ISSUES CONCERNING A PSD
PERMIT MAY NEVER BE CONSOLIDATED WITH A FORMAL EVIDENTIARY HEARING UNDER
SUBPART E, THOUGH THEY MAY CONTINUE TO BE CONSOLIDATED IN NON-ADVERSARY
PANEL HEARINGS UNDER SUBPART F. EPA ACCEPTED COMMENTS WHICH ARGUED THAT
THE POTENTIAL FOR EXCEEDING THE ONE-YEAR DEADLINE UNDER SUBPART E
PROCEEDINGS WAS TOO GREAT TO RISK.
6. AS NOTED ABOVE, CHANGES TO BETTER INCORPORATE THE PSD PROGRAM
HAVE BEEN MADE IN SECTIONS 124.3, 124.5 AND 124.6.
7. IN ADDITION TO THESE CHANGES, COMPLEMENTARY CHANGES WILL BE MADE
TO 40 CFR SECTION 52.21 TO CLARIFY ITS RELATIONSHIP WITH PART 124. IN
PARTICULAR, EPA EXPECTS TO REPEAL SECTION 52.21(R), WHICH HAS BEEN
SUPPLANTED BY THIS PART, AND TO INSERT APPROPRIATE CROSS-REFERENCES TO
THIS PART IN SECTION 52.21.
1. A NUMBER OF COMMENTERS ARGUED THAT THE PROVISION IN SECTION
307(D) OF THE CLEAN AIR ACT ALLOWING 60 DAYS TO SEEK JUDICIAL REVIEW OF
A PSD PERMIT SHOULD BE REFLECTED IN THE EFFECTIVE DATE OF PERMITS ISSUED
UNDER THESE REGULATIONS. EPA HAS NOT ACCEPTED THIS COMMENT. ACCEPTING
IT WOULD RESULT IN AN AUTOMATIC 60 DAY DELAY OF THE EFFECTIVE DATE OF
EVERY PERMIT, EVEN THOSE THAT WERE UNCONTROVERSIAL. ALTHOUGH THE
ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. 704, FORBIDS MAKING A PERMIT
EFFECTIVE BEFORE JUDICIAL REVIEW IS AVAILABLE, JUDICIAL REVIEW OF A PSD
PERMIT COULD COME AT ANY TIME BETWEEN THE DATE OF FINAL AGENCY ACTION
AND THE CLOSING OF THE SECTION 307(D) PERIOD.
2. IN THE PREAMBLE TO THE PROPOSAL, EPA STATED ITS POSITION ON
WHETHER "THRESHOLD" DETERMINATIONS THAT A GIVEN SOURCE WOULD HAVE TO
APPLY FOR A PSD PERMIT SHOULD BE REGARDED AS FINAL AGENCY ACTION. EPA
HAS CHANGED THAT POSITION. INSTEAD, THE AGENCY SUPPORTS THE POLICY,
ANNOUNCED IN THE SEPTEMBER 1, 1979, MEMORANDUM FROM THE ASSISTANT
ADMINISTRATOR FOR ENFORCEMENT AND THE GENERAL COUNSEL IN FEDERAL
REGISTER PUBLICATION OF SIGNIFICANT FINAL ACTIVITY UNDER TITLE I OF THE
CLEAN AIR ACT, THAT REQUIRES PSD APPLICABILITY DETERMINATION TO BE
PUBLISHED IN THE FEDERAL REGISTER AS FINAL AGENCY ACTIONS. BECAUSE OF
THE CONSEQUENCES OF APPLICABILITY DETERMINATIONS FOR A SOURCE (FOR
EXAMPLE, THE TRIGGERING OF A ONE-YEAR MONITORING REQUIREMENT UNDER CAA
SECTION 165(E)(2)) AND THE INFREQUENCY OF FACTUAL QUESTIONS, EPA HAS
DECIDED THAT FOR REASONS OF FAIRNESS AND EFFICIENCY THESE DETERMINATIONS
SHOULD BE TREATED AS FINAL AGENCY ACTION.
MANY OF THE COMMENT ON THIS SUBPART AND SUBPARTS E AND F ESSENTIALLY
REPEATED POINTS MADE DURING THE RULEMAKING ON EPA'S NPDES PROGRAM
REVISIONS. THOSE COMMENTS WERE ADDRESSED IN THE PREAMBLE TO THE FINAL
REGULATIONS, ISSUED JUNE 7, 1979, 44 FR 32854, AND CROSS-REFERENCES TO
THAT PREAMBLE ARE INCLUDED HERE.
COMMENTS RECEIVED HERE QUESTIONED BOTH THE REQUIREMENT FOR STATES TO
SUPPLY A COMPLETE CERTIFICATION WITHIN 60 DAYS, AND THE STATEMENT THAT
CONDITIONS PROPERLY CERTIFICATED WOULD BE AUTOMATICALLY ACCEPTED IN
ALMOST ALL CASES. HOWEVER, NO NEW ARGUMENTS WERE RAISED, SO THE REASONS
GIVEN FOR THESE PROVISIONS IN THE JUNE 7 REGULATIONS REMAIN APPLICABLE,
44 FR 32880.
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FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 126 OF 225
COSTLE DM ADMINISTRATOR
EPA
113625
REGULATIONS
A NEW PARAGRAPH HAS BEEN ADDED TO THIS SECTION LISTING WHAT MUST BE
INCLUDED IN THE FACT SHEET. IF A PERMIT INCLUDES ANY OF THREE TYPES OF
CONDITIONS, THE FACT SHEET MUST INCLUDE AN EXPLANATION OF HOW THOSE
CONDITIONS WERE DEVELOPED. (SECTION 124.8 ALSO REQUIRES THAT A FACT
SHEET, RATHER THAN A STATEMENT OF BASIS, BE DEVELOPED.) THE REGULATIONS
GOVERNING HOW THESE THREE CONDITIONS ARE DEVELOPED ALSO REQUIRE THAT AN
EXPLANATION BE INCLUDED IN THE FACT SHEET. SEE SECTIONS 122.62(E)
122.63(I) AND 125.3(G).
(1) SOME COMMENTERS OBJECTED TO THE REQUIREMENT THAT CONDITIONS
REQUESTED BY THE CORPS OF ENGINEERS WOULD BE AUTOMATICALLY INCLUDED IN
NPDES PERMITS. IT REMAINS EPA'S POSITION THAT SUCH A PROVISION IS
LEGALLY REQUIRED FOR THE REASONS STATED IN THE JUNE 7 PREAMBLE. 44 FR
32881-82.
(2) ONE COMMENTER ALSO QUESTIONED THE PROVISION IN SECTION 124.59 (C)
FOR INFORMAL CONSULTATION WITH OTHER AGENCIES BEFORE ISSUING A DRAFT
PERMIT. CONSULTATION BEFORE A DRAFT PERMIT IS PREPARED DOES NOT VIOLATE
ANY REULES AGAINST "EX PARTE" CONTACTS ESTABLISHED EVEN BY THE COURTS
THAT HAVE TAKEN THE MOST EXTREME POSITIONS ON THIS ISSUE. SUCH
CONSULTATION COULD RESULT IN MORE INFORMED AND EXPEDITIOUS PROCESSING OF
PERMIT APPLICATIONS. HENCE, THE COMMENT HAS BEEN REJECTED.
(3) ONE COMMENTER ATTACKED THE PROVISIONS REQUIRING PERMIT CONDITIONS
REQUIRED BY THE CORPS OF ENGINEERS TO BE APPEALED THROUGH THE PROCEDURES
OF THE CORPS AND NOT THROUGH EPA PROCEDURES. THIS COMMENT HAS BEEN
REJECTED FOR THE REASONS STATED IN THE FINAL NPDES REGULATIONS. SEE 44
FR 32881 (JUNE 7, 1979).
(1) COMMENTERS AGAIN OBJECTED TO THE PROVISION THAT AN NPDES PERMIT
TO A NEW DISCHARGER OR NEW SOURCE WOULD NOT TAKE EFFECT UNTIL FINAL
AGENCY ACTION. AS STATED IN THE JUNE PREAMBLE, EPA BELIEVES THAT SUCH A
POSITION IS ENTIRELY DEFENSIBLE AS A MATTER OF LAW. 44 FR 32883-32884.
THE CLEAN WATER ACT STATES THAT PERMITS CAN ONLY BE ISSUED FOLLOWING AN
OPPORTUNITY FOR A "PUBLIC HEARING.' COURTS HAVE INTERPRETED THIS
PROVISION TO MEAN A FORMAL HEARING. THUS, UNTIL THE FORMAL HEARING
STAGE OF THE PROCEEDINGS IS FINISHED, THE STATUTORY PRECONDITIONS TO
PERMIT ISSUANCE HAVE NOT BEEN MET. EVEN AFTER AN INITIAL DECISION BY AN
ADMINISTRATIVE LAW JUDGE OR THE REGIONAL ADMINISTRATOR, 5 7.S.C. 704
REQUIRES A PERMIT TO BE STAYED IF JUDICIAL REVIEW IS TO BE AVOIDED.
SINCE IT MAKES LITTLE SENSE TO JUDICIALLY REVIEW A PERMIT THAT IS
UNDERGOING AGENCY REVIEW, EPA, INSTEAD OF STAYING THE CONTROL
REQUIREMENTS IN THE PERMIT, STAYS THE STATUS OF HAVING A PERMIT AND
TREATS THE NEW SOURCE OR NEW DISCHARGER AS BEING WITHOUT A PERMIT
PENDING FINAL AGENCY ACTION.
EPA, HOWEVER, HAS AMENDED SECTION 124.60(A) TO GIVE THE PRESIDING
OFFICER AT AN EVIDENTIARY HEARING THE POWER TO AUTHORIZE THE THE SOURCE
TO COMMENCE OPERATIONS BEFORE FINAL AGENCY ACTION IF THE SOURCE COMPLIES
WITH ALL THE CONDITIONS OF THE CONTESTED PERMIT. THE PRESIDING OFFICER
MAY ISSUE SUCH AN ORDER IF THE SOURCE REQUESTS AND IF NO PARTY OBJECTS.
IF A PARTY OBJECTS, THE ORDER CANNOT BE ISSUED UNLESS THE SOURCE CAN
MEET THE REQUIREMENTS LISTED IN SECTION 124.60(A)(2).
(2) ONE COMMENTER ASSERTED THAT ALTHOUGH SECTION 124.60(D) WOULD
PREVENT THE LAPSE OF AN NPDES PERMIT THAT WAS BEING REISSUED AT THE
EXPIRATION OF ITS TERM, IT WOULD NOT PREVENT THE LAPSE OF AN NPDES
PERMIT WHICH WAS BEING MODIFIED OR REVOKED AND REISSUED. THIS DOES NOT
CORRESPOND TO EPA'S INTERPRETATION. IN REVOCATION AND REISSUANCE, THE
EXISTING PERMIT IS REVOKED SIMULTANEOUSLY WITH THE ESTABLISHMENT OF THE
NEW PERMIT CONDITIONS, LEAVING NO GAP UNCOVERED BY A PERMIT. SIMILARLY,
WHEN A PERMIT IS MODIFIED, THE CONDITIONS CHANGE, BUT THERE IS NO
INTERRUPTION OF THE PERMIT'S COVERAGE.
SEVERAL COMMENTERS OPPOSED THE PROVISION IN THIS SECTION ALLOWING EPA
TO RETAIN JURISDICTION OVER CERTAIN VARIANCES EVEN IN A STATE WHICH HAD
BEEN APPROVED TO ADMINISTER THE BASIC NPDES PROGRAM. HOWEVER, AS THE
JUNE PREAMBLE EXPLAINED, THESE PROVISIONS REFLECT THE EXPLICIT LANGUAGE
AND INTENT OF THE CWA. 44 FR 32882-83.
A NUMBER OF COMMENTERS OBJECTED TO THE TEST SET FORTH IN THIS SECTION
AND SECTION 124.117 FOR STAYS OF PERMIT CONDITIONS SUBJECT TO REQUESTS
FOR SECTION 301(G) VARIANCES. THIS PROVISION, HOWEVER, SIMPLY REFLECTS
THE EXPLICIT LANGUAGE OF SECTION 301(J) (2) OF THE CWA.
IN THESE FINAL REGULATIONS EPA HAS DECIDED TO MAKE SECTION 301(H)
DECISIONS SUBJECT TO THE SAME PROCEDURAL OPTIONS AS OTHER TYPES OF
VARIANCE DECISIONS. THIS SECTION AND SECTION 124.111 HAVE BEEN REVISED
TO ELIMINATE THE REQUIREMENT THAT 301(H) VARIANCES BE AUTOMATICALLY
PROCESSED THROUGH A PANEL HEARING, INDEPENDENT OF OTHER PENDING PERMIT
ACTIONS. GIVING THE REGIONAL ADMINISTRATOR DISCRETION ON THE PROCEDURES
TO USE AND WHETHER TO CONSOLIDATE 301(H) DECISIONS WITH OTHER DECISIONS
ON THE SAME PERMIT SHOULD RESULT IN DECISIONS THAT CAN BE MADE MORE
EFFICIENTLY AND ECONOMICALLY.
ONE COMMENTER URGED THAT OTHER TYPES OF VARIANCES SHOULD BE MADE
SUBJECT TO THE "EARLY DECISION" PROVISIONS OF THIS SECTION. THE COMMENT
POINTED OUT THAT IN THESE CASES A DECISION ON VARIANCE CONDITIONS MIGHT
BE NECESSARY TO ALLOW STATES TO MAKE A DECISION. EPA BELIEVES, HOWEVER,
THAT ONLY VARIANCES OF EXTRAORDINARY IMPORTANCE (E.G. SECTION 316(A))
SHOULD BE AFFORDED THIS TYPE OF FRAGMENTED PROCEDURE, AND THEREFORE HAS
NOT ENLARCED THE "EARLY DECISION" PROVISION.
ONE COMMENTER QUESTIONED THE STATEMENT IN EPA'S PRIOR PREAMBLES THAT
EVIDENTIARY HEARINGS WOULD NOT BE HELD ON GENERAL PERMITS. 43 FR 37087;
44 FR 32884. IT STATED TAHT ALTHOUGH APPLICATION FOR AN INDIVIDUAL
PERMIT, FOLLOWED BY INDIVIDUAL PROCEEDINGS ON THAT PERMIT, MIGHT BE THE
BEST WAY TO HANDLE DISCHARGER-SPECIFIC PROBLEMS WITH A GENERAL PERMIT,
AN EVIDENTIARY HEARING SHOULD BE AVAILABLE FOR CHALLENGES TO THE
CONDITIONS OF THE PERMIT IN THEIR GENERAL APPLICATION.
EPA DISAGREES. AS THE PREAMBLE TO THE PROPOSAL STATED, GENERAL
PERMITS ARE, FUNCTIONALLY, RULES. EVIDENTIARY HEARINGS TODAY ARE ALMOST
NEVER REQUIRED BEFORE ISSUING SUCH RULES, AND IT IS EPA'S CONCLUSION
THAT CONGRESS DID NOT INTEND THEM IN THIS CONTEXT EITHER. THE NOTICE
AND COMMENT PROCEDURES PROVIDED HERE, TOGETHER WITH THE OPPORTUNITY FOR
JUDICIAL REVIEW, AFFORD INTERESTED PERSONS AMPLE PROCEDURAL PROTECTION.
HOWEVER, IF THE REGIONAL ADMINISTRATOR DECIDES TO EMPLOY A MORE FORMAL
MECHANISM, SUBPART F PANEL HEARINGS ARE AVAILABLE FOR THIS PURPOSE.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 127 OF 225
COSTLE DM ADMINISTRATOR
EPA
113626
REGULATIONS
EPA HAS ADDED A SENTENCE STATING THAT TERMINATION AND SUSPENSION OF
RCRA PERMITS ARE GOVERNED BY THIS SUBPART.
(1) SOME COMMENTERS QUESTIONED THE CONSEQUENCES OF RAISING BOTH LEGAL
AND FACTUAL ISSUES IN A REQUEST FOR AN EVIDENTIARY HEARING. THIS
SECTION ALLOWS THE SUBMISSION OF REQUESTS FOR EVIDENTIARY HEARINGS EVEN
THOUGH BOTH LEGAL AND FACTUAL ISSUES MAY BE RAISED, OR ONLY LEGAL ISSUES
MAY BE RAISED. IN THE LATTER CASE, BECAUSE NO FACTUAL ISSUES WERE
RAISED, THE REGIONAL ADMINISTRATOR WOULD BE REQUIRED TO DENY THE
REQUEST. HOWEVER, ON REVIEW OF THE DENIAL, THE ADMINISTRATOR IS
AUTHORIZED BY SECTION 124.91(A)(1) TO REVIEW POLICY OR LEGAL CONCLUSIONS
OF THE REGIONAL ADMINISTRATOR. EPA IS REQUIRING AN APPEAL TO THE
ADMINISTRATOR EVEN OF PURELY LEGAL ISSUES INVOLVED IN A PERMIT DECISION
TO ENSURE THAT THE ADMINISTRATOR WILL HAVE AN OPPORTUNITY TO REVIEW ANY
PERMIT BEFORE IT BECOMES FINAL AND SUBJECT TO JUDICIAL REVIEW.
(2) ONE COMMENTER SUGGESTED THAT ONLY PERSONS WHO HAD COMMENTED ON
THE DRAFT PERMIT SHOULD BE ALLOWED TO REQUEST AN EVIDENTIARY HEARING ON
THAT PERMIT.
EPA BELIEVES THAT PERSONS SHOULD MAKE AS MUCH OF THEIR CASE AS
POSSIBLE DURING THE NOTICE AND COMMENT PERIOD BEFORE MOVING TO AN
EVIDENTIARY HEARING, BUT BELIEVES THIS COMMENT GOES FURTHER THAN APPEARS
NECESSARY.
SECTION 124.76 PROVIDES THAT, GENERALLY SPEAKING, THE MATERIAL AND
ARGUMENT FOR AN EVIDENTIARY HEARING MUST HAVE BEEN PRESENTED DURING THE
NOTICE AND COMMENT STAGE. GIVEN THIS RESTRICTION, LITTLE BENEFIT WOULD
RESULT FROM RESTRICTING THE PARTICIPANTS AT THE HEARING TO THOSE WHO
TOOK PART AT THE PRECEDING STAGES.
(3) OTHER COMMENTERS CONTENDED THAT THE PROVISION REQUIRING THE
REQUESTER TO PRODUCE DOCUMENTS AND WITNESSES WAS TOO BROAD. THIS
PROVISION IS NO BROADER THAN THE AGENCY SUBPOENA POWER FOR WHICH IT
SUBSTITUTES. SEE 44 FR 32884.
ONE COMMENTER SUGGESTED THAT A TIME LIMIT SHOULD BE IMPOSED ON THE ON
THE REGIONAL ADMINISTRATOR FOR EITHER GRANTING OR DENYING A REQUEST FOR
AN EVIDENTIARY HEARING. EPA HAS ACCEPTED THIS COMMENT AND HAS IMPOSED A
30-DAY TIME LIMIT FOR THE GRANTING OR DENYING OF AN EVIDENTIARY HEARING
REQUEST.
A NUMBER OF COMMENTERS THOUGHT THIS PROVISION WAS TOO RESTRICTIVE.
BECAUSE NO SIGNIFICANT NEW POINTS WERE RAISED, EPA CONTINUES TO ADHERE
TO THE POSITION ARTICULATED IN THE FINAL NPDES REVISION. SEE 44 FR
32884-32885. HOWEVER, EPA DOES WISH TO EMPHASIZE THE VALUE OF THE GOOD
CAUSE PROVISION. THIS PROVISION FUNCTIONS AS A SAFETY VALVE TO PREVENT
SECTION 124.76 FROM BEING AS RESTRICTIVE AS FEARED BY THE COMMENTERS.
GOOD CAUSE ALLOWS THE PRESIDING OFFICER TO EXERCISE HIS OR HER
DISCRETION TO ADMIT ISSUES AND EVIDENCE NOT RAISED DURING THE PUBLIC
COMMENT PERIOD OR AT ANY PUBLIC HEARING. WHAT IS "GOOD CAUSE" WILL VARY
FROM CASE TO CASE. ALTHOUGH SUGGESTIONS OF WHAT CAN CONSTITUTE GOOD
CAUSE ARE INCLUDED IN THE REGULATION ITSELF, THIS LIST IS NOT
EXHAUSTIVE. THE PROVISION HAS BEEN SLIGHTLY REDRAFTED TO CLARIFY THAT
POINT. THESE STANDARDS SHOULD BE APPLIED DIFFERENTLY DEPENDING UPON THE
PROCEDURAL SETTING. WHEN DECIDING WHETHER TO GRANT OR DENY A REQUEST
FOR A HEARING, THE REGIONAL ADMINISTRATOR SHOULD APPLY THESE STANDARDS
IN A RELATIVELY UNRESTRICTIVE MANNER. REQUEST SHOULD BE REJECTED ONLY
IF THEY ARE FRIVOLOUS OR CLEARLY WITHOUT MERIT. AFTER A HEARING HAS
BEEN GRANTED AND AN ADMINISTRATIVE LAW JUDGE BEGINS TO STRUCTURE THE
PROCEEDINGS, HE OR SHE SHOULD APPLY THOSE STANDARDS STRICTLY IN
CONFORMITY WITH THE PRINCIPLE OF DEVELOPING THE RECORD AS MUCH AS
POSSIBLE DURING THE NOTICE AND COMMENT STAGES.
(1) ONE COMMENTER OBJECTED TO THE STATEMENT THAT APPEARANCE AS A
WITNESS IS NOT AUTOMATICALLY THE SAME AS THE PERFORMANCE OF
"INVESTIGATIVE OR PROSECUTING FUNCTIONS" SO AS TO INVOKE THE EX PARTE
RULE. THIS, HOWEVER, IS THE CONCLUSION OF PROFESSOR DAVIS, WITH WHICH
EPA CONCURS AND WHICH IT HAS ADOPTED. K. DAVIS, ADMINISTRATIVE LAW
TREATISE, SECTION 11.17 (1958).
(2) ANOTHER COMMENTER QUESTIONED WHY WITNESSES FROM EPA WERE NOT
AUTOMATICALLY SUBJECT TO THE "EX PARTE RULE," WHILE WITNESSES FROM
OUTSIDE THE AGENCY WERE. THE ANSWER IS THAT DIFFERENT LEGAL TESTS APPLY
TO THE TWO CLASSES OF WITNESSES. WITNESSES FROM WITHIN EPA ARE SUBJECT
ONLY TO THE "SEPARATION OF FUNCTIONS" PROVISIONS OF THE EPA IF THEY HAVE
PERFORMED "INVESTIGATIVE OR PROSECUTING" FUNCTIONS. SEE 5 U.S.C.
SECTION 554(D).
HOWEVER, THE "EX PARTE PROVISIONS," ADDED TO THE APA BY THE
GOVERNMENT IN THE SUNSHINE ACT, 90 STAT. 1241 ET. SEQ., APPLY TO ALL
CONTACTS WITH ANY "INTERESTED PERSON OUTSIDE THE AGENCY." SEE 5 U.S.C.
SECTION 544(D). THE LEGISLATIVE HISTORY IS CLEAR THAT THIS DEFINITION
INCLUDES ANY PERSON WHOSE INTEREST IN THE CASE IS GREATER THAN THE
INTEREST OF AN ORDINARY MEMBER OF THE PUBLIC. H.R. REP. NO. 94 -- 880,
94TH. CONG. 2D. SESS. AT 19-20 (1976); S. REP. NO. 94-354, 94TH. CONG.,
1ST. SESS. AT 36 (1975).
(1) ONE COMMENTER ARGUED, WITHOUT SUPPORTING REASONS, THAT THE
DISCOVERY PROVISIONS IN THIS SECTION WERE ILLEGAL. HOWEVER, THE
ADMINISTRATIVE CONFERENCE OF THE UNITED STATES HAS RECOMMENDED THAT ALL
AGENCIES, INCLUDING THOSE LACKING FORMAL SUBPOENA AUTHORITY ADOPT
"DISCOVERY" PROCEDURES. THE REPORT ACCOMPANYING RECOMMENDATION NO. 21
ASSERTS THAT SUCH PROCEDURES WOULD BE LEGAL. TOMLINSON, "REPORT OF THE
COMMITTEE ON COMPLIANCE AND ENFORCEMENT PROCEEDINGS IN SUPPORT OF
RECOMMENDATION NO. 21," RECOMMENDATION AND REPORTS OF THE ADMINISTRATIVE
CONFERENCE OF THE UNITED STATES, VOL 1. 577,583.
(2) THIS SAME COMMENTER URGED THAT DISCOVERY BE SAFEGUARDED AGAINST
ABUSE. ANY REQUEST FOR DISCOVERY IS EXPLICITLY MADE SUBJECT, BY SECTION
124.83(C)(5), TO THE APPROVAL OF THE PRESIDING OFFICER. ACCORDINGLY, NO
CHANGE IN THE PROPOSED REGULATION IS NECESSARY.
(3) ANOTHER COMMENTER ASKED WHETHER FURNISHING THE NAMES OF WITNESSES
UNDER SECTION 124.83(D) MEANT ONLY THE NAMES OF DIRECT TESTIMONY
WITNESSES. EPA AGREES THAT, AS A PRACTICAL MATTER, SUCH A LIMIT WILL
PROBABLY BE SET. BUT THE PRESIDING OFFICER, IN AN APPROPRIATE CASE,
COULD SCHEDULE A SECOND CONFERENCR TO DEAL WITH REBUTTAL SUBMISSIONS.
SEE SECTION 124.83(A).
(A) ONE COMMENTER URGED THAT MOTIONS FOR SUMMARY DETERMINATION SHOULD
STAY THE HEARING. THIS IS NOT THE PRACTICE IN FEDERAL DISTRICT COURTS
WITH RESPECT TO MOTIONS FOR SUMMARY JUDGMENT, AND THE COMMENT HAS NOT
BEEN ACCEOTED. (A SIMILAR SUGGESTION REGARDING INTERLOCUTORY APPEALS
UNDER SECTION 124.90 HAS ALSO BEEN REJECTED.)
(2) EPA HAS ACCEPTED ANOTHER COMMENTER'S SUGGESTION THAT THIS
PROVISION BE AMENDED TO INCLUDE LANGUAGE PATTERNED ON RULE 56(F) OF THE
FEDERAL RULES OF CIVIL PROCEDURE.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 128 OF 225
COSTLE DM ADMINISTRATOR
EPA
113627
REGULATIONS
(1) SEVERAL COMMENTERS QUESTIONED EPA'S CONCLUSION THAT THE BURDEN OF
PERSUASION FOR PERMIT ISSUANCE ALWAYS RESTS WITH THE PERMIT APPLICANT.
THE ONLY NEW POINT, HOWEVER, WAS THAT IT MADE LITTLE SENSE TO ALLOCATE
THE BURDEN OF PERSUASION DIFFERENTLY FROM THE BURDEN OF GOING FORWARD,
SINCE A PARTY NOT HAVING THE BURDEN F PERSUASION, BUT HAVING THE BURDEN
OF GOING FORWARD, MIGHT HOLD BACK INFORMATION UNFAVORABLE TO ITS CASE.
IF THIS ARGUMENT WEFE VALID, THERE WOULD BE NO NEED FOR TWO CONCEPTS OF
"BURDEN OF PROOF", SINCE THE BURDEN OF GOING FORWARD COULD ALWAYS BE
DERIVED FROM THE BURDEN OF PERSUASION. HOWEVER, NOT ONLY ARE BOTH
CONCEPTS WELL ESTABLISHED; IT IS SETTLED THAT THE QUESTION OF WHO HAS
THE BETTER ACCESS TO INFORMATION AFFECTS THE BURDEN OF GOING FORWARD FAR
MORE EASILY THAN THE BURDEN OF PERSUASION, AND IS OFTEN NOT DISPOSITIVE
EVEN WHERE THE BURDEN OF GOING FORWARD IS CONCERNED. SEE MCCORMICK,
HANDPOOK ON THE LAW OF EVIDENCE, AT 675 (1954). SEE ALSO, WIGMORE,
TREATISE ON THE LAW OF EVIDENCE, SECTION 2486.
(2) ONE COMMENTER OBJECTED TO THE PROVISION IN SECTION 124.85(B)(14)
FOR HEARING OPPOSING WITNESSES SIMULTANEOUSLY OR FOR ASKING THEM TO
CONFER OUTSIDE THE HEARING. IT CLAIMED THAT THIS WOULD CONVERT AN
ADVERSARY HEARING INTO A BARGAINING SESSION OR A SCIENTIFIC FORUM.
EPA DISAGREES WITH THE APPARENT PREMISE OF THIS COMMENT THAT HEARING
PROCEDURES SHOULD BE CHOSEN TO PRESERVE AND PROTECT ADVERSARY CONDUCT.
HEARING PROCEDURES INSTEAD SHOULD BE CHOSEN TO PRODUCE THE MOST ACCURATE
AND COMPREHENSIVE RECORD FOR DECISION. WHEN A COMPLICATED TECHNICAL
MATTER IS UNDER DISCUSSION, THERE MAY BE REAL VALUE IN HAVING THE
EXPERTS FROM ALL SIDES LISTENING TO EACH OTHER AND RESPONDING TO OR
ANSWERING INDIVIDUAL POINTS. IT IS EPA'S EXPERIENCE THAT EXCESSIVELY
FORMAL HEARING PROCEDURES OFTEN OBSCURE, RATHER THAN CLARIFY,
DIFFERENCES IN METHODOLOGY AND POINTS OF AGREEMENT AND DISAGREEMENT
AMONG EXPERTS. IN SUCH CASES IT MIGHT BE APPROPRIATE FOR THE PRESIDING
OFFICER TO REQUEST THE WITNESSES TO DISCUSS THE MATTER INFORMALLY; NOT
TO BARGIN A CONSENSUS SOLUTION, BUT SIMPLY TO CLARIFY THEIR ASSUMPTIONS.
BOTH APPROACHES, AFTER ALL, ARE WIDELY USED BY TECHNICALLY TRAINED
PERSONS TO CLARIFY ISSUES IN THE COURSE OF THEIR OWN PROFESSIONAL
ACTIVITIES, AND THERE SEEMS NO REASON TO BAR THEIR USE SIMPLY BECAUSE A
LEGAL DECISION DEPENDS ON THAT CLARIFICATION.
(3) PROPOSED SECTION 124.85(B)(16) PROHIBITED CROSS-EXAMINATION ON
QUESTIONS OF LAW AND POLICY, OR REGARDING MATTERS (SUCH AS THE VALIDITY
OF EFFLUENT LIMITATIONS GUIDELINES) THAT ARE NOT SUBJECT TO CHALLENGE IN
A NPDES PROCEEDING. NUMEROUS COMMENTS WERE RECEIVED ON THIS PROVISION,
CONTENDING THAT IT WAS UNDULY RESTRICTIVE. ONE COMMENTER SUGGESTED THAT
THIS PROVISION SHOULD BE CHANGED TO ALLOW AGENCY EMPLOYEES TO BE
QUESTIONED ON THE BASIS FOR AN AGENCY ACTION RELATING TO CONTESTED
PROVISIONS IN A FINAL PERMIT. EPA AGREES THAT CROSS-EXAMINATION MAY BE
PROPER ON QUESTIONS OF POLICY TO THE EXTENT REQUIRED TO DISCLOSE THE
FACTUAL BASIS FOR PERMIT REQUIREMENTS AND SECTION 124.85(B)(16) HAS BEEN
REVISED ACCORDINGLY.
(4) OTHER COMMENTERS OBJECTED TO THE AUTOMATIC RECEIPT OF THE
ADMINISTRATIVE RECORD INTO EVIDENCE UNDER SECTION 124.85(D)(2). THE
REASONS FOR THIS APPROACH WERE EXPLAINED IN THE JUNE PREAMBLE AT 44 FR
32885. THE ONLY NEW ARGUMENT RAISED WAS THAT SUCH INTRODUCTION COULD BE
PREJUDICIAL. HOWEVER, IN NPDES PROCEEDINGS THERE IS NO JURY TO
PREJUDICE. ACCORDINGLY, THE LIKELIHOOD OF PREJUDICE IN THIS LESS
RESTRICTIVE APPROACH APPEARS MINIMAL, AND IT SEEMS UNLIKELY TO OUTWEIGH
THE BENEFITS OF HAVING THE ADMINISTRATIVE RECORD AVAILABLE.
(5) ANOTHER COMMENTER OBJECTED TO THE REQUIREMENT THAT A REQUEST FOR
A WITNESS TO SPONSOR THE ADMINISTRATIVE RECORD ON A SHOWING MEET A
"LEGIITIMATE DOUBT" TEST AS WELL AS THE STANDARDS FOR CROSS-EXAMINATION.
EPA PARTIALLY AGREES WITH THIS COMMENT AND HAS DELETED THE
"LEGITIMATE DOUBT" TEST. THE ADMINISTRATIVE RECORD CAN BE VIEWED AS
DIRECT TESTIMONY INTRODUCED IN WRITING, AND SO A SPONSORING WITNESS MAY
BE NEEDED TO ALLOW CROSS-EXAMINATION OF THE WRITTEN DIRECT.
ACCORDINGLY, THERE IS NO NEED FOR AN ADDITIONAL "LEGITIMATE DOUBT" TEST.
EPA BELIEVES THAT THE SUBSTANCE OF THIS TEST IS INCLUDED IN THE
REQUIREMENT THAT THE PRESIDING OFFICER FIND, BEFORE GRANTING
CROSS-EXAMINATION, THAT CROSS-EXAMINATION WOULD BE LIKELY TO CLARIFY OR
RESOLVE A RELEVANT DISPUTED ISSUE OF MATERIAL FACT. SEE SECTION
124.85(D)(10).
(6) COMMENTERS ALSO ARGUES THAT THIS SECTION RESTRICTED
CROSS-EXAMINATION TOO MUCH. THOSE COMMENT HAVE BEEN REJECTED FOR THE
REASONS STATED IN THE JUNE 7 PREAMBLE. SEE 44 FR 32886.
(7) THE REQUIREMENT CONTAINED IN THE PROPOSAL OF THIS SECTION AND
SECTION 124.129 THAT HEARINGS COULD ONLY BE SETTLED WITH THE APPROVAL OF
THE DEPUTY ASSISTANT ADMINISTRATOR FOR WATER ENFORCEMENT HAS BEEN
DELETED.
COMMENTS OPPOSED THE PROVISION OF THIS SECTION ALLOWING NEW
REGULATORY REQUIREMENTS TO BE MADE APPLICABLE. THEY HAVE NOT BEEN
ACCEPTED FOR THE REASONS STATED IN THE JUNE PREAMBLE AT 44 FR 32886-87.
THE PROVISION IN THE PROPOSAL FOR TREATING THE DECISIONS OF
ADMINISTRATIVE LAW JUDGES SIMPLY AS RECOMMENDATIONS TO THE REGIONAL
ADMINISTRATOR WHEN RCRA OR UIC PERMIT CONDITIONS ARE CONCERNED HAS BEEN
DELETED AS CAUSING UNNECESSARY PROCEDURAL COMPLEXITY. INSTEAD, THE
ALJ'S DECISION REGARDING THESE PERMIT CONDITIONS WILL BE SUBJECT TO
APPEAL TO THE ADMINISTRATOR LIKE ANY OTHER DECISION AFTER AN EVIDENTIARY
HEARING.
(1) ONE COMMENTER ARGUED THAT THE TEST FOR INTERLOCUTORY APPEAL
STATED IN SECTION 124.90(A)(3) WAS UNNECESSARY AND THAT THE FUNCTION OF
SCREENING OUT UNQUALIFIED REQUESTS FOR INTERLOCUTORY RELIEF COULD BE
PERFORMED BY TWO TESTS SET FORTH IN SECTION 124.90(A)(2). THIS COMMENT
HAS BEEN ACCEPTED.
(2) THIS COMMENTER ALSO CHALLENGED THE PROVISION IN SECTION 124.90
(D) THAT INTERLOCUTORY RELIEF IS EXTRAORDINARY RELIEF. THIS PROVISION
HAS BEEN RETAINED TO ENSURE THAT INTERLOCUTORY APPEALS DO NOT BECOME AN
ADMINISTRATIVE BURDEN.
(3) THE PROVISION IN THIS SECTION AND SECTION 124.91 FOR MANDATORY
CONSULTATION OF THE GENERAL COUNSEL ON MATTERS OF LAW HAS BEEN DELETED.
OF COURSE, THE ADMINISTRATOR OF THE JUDICIAL OFFICER WILL STILL BE FREE
TO CONSULT ANY MEMBER OF THE GENERAL COUNSEL'S OFFICE ON SUCH MATTERS,
AND REQUEST THEM TO DRAFT PORTIONS OF THE FINAL DECISION TO THE EXTENT
THAT THE PERSONS CONSULTED ARE NOT PART OF THE TRIAL STAFF DESIGNATED
UNDER SECTION 124.78.
ONE COMMENTER ON THIS SECTION ASKED THAT A PROVISION BE INCLUDED FOR
STAYS OF FINAL AGENCY ACTION. NO SUCH PROVISION HAS BEEN INCLUDED
BECAUSE EPA BELIEVES QUESTIONS CONCERNING SUCH STAYS ARE BEST ADDRESSED
CASE-BY-CASE.
MANY COMMENTS WERE RECEIVED ON THIS SUBPART. HOWEVER, NO NEW POINTS
WERE MADE THAT WOULD NECESSITATE REVISION OF THE DISCUSSION IN THE JUNE
14, 1979 PREAMBLE AT 44 FR 32887-32891.
A MAJOR FEATURE OF THESE PROCEDURES IS THE MERGING OF THE NOTICE
-AND-COMMENT PROCEDURES UNDER SUBPART A AND THE HEARING UNDER SUBPART E
INTO ONE PROCEEDING. ACCORDINGLY, EPA BELIEVES THAT THE FULL BENEFIT OF
THESE PROCEDURES WILL BE FELT ONLY IF THEY ARE USED BEGINNING WITH THE
DRAFT PERMIT.
HOWEVER, CASES MAY ARISE IN WHICH IT BECOMES APPARENT DURING OR AFTER
SUBPART A PROCEEDINGS, THAT USE OF THIS SUBPART MIGHT BE ADVISABLE.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 129 OF 225
COSTLE DM ADMINISTRATOR
EPA
113628
REGULATIONS
ACCORDINGLY, CHANGES HAVE BEEN MADE TO SECTIONS 124.15, 124.74,
124.75, AND VARIOUS PROVISIONS OF THIS SUBPART TO MAKE IT EASIER
TO SWITCH A PERMIT INTO THIS SUBPART IN CASES WHERE IT WAS NOT
PLACED UNDER THIS SUBPART FROM THE BEGINNING.
THIS SECTION HAS BEEN CHANGED TO CLARIFY THAT, THOUGH EPA CONSIDERS
VARIANCES AND MODIFICATIONS TO BE ELIGIBLE FOR "INITIAL LICENSING"
PROCEDURES, THESE PROCEDURES SHOULD NOT BE USED WHERE THEY WOULD RESULT
IN DUPLICATE HEARINGS BEING HELD BY EPA ON THE SAME PERMIT. THIS COULD
HAPPEN WHEN A PERMIT WAS BEING RENEWED AND A VARIANCE APPLICATION WAS
MADE AT THE SAME TIME. THE VARIANCE STANDING ALONE WOULD BE ELIGIBLE
FOR PROCESSING UNDER SUBPART F, WHILE THE OTHER PERMIT TERMS WOULD BE
SUBJECT TO AN EVIDENTIARY HEARING UNDER SUBPART E.
IN SUCH A CASE SUBPART F COULD STILL BE USED IF ALL PARTIES AGREED.
HOWEVER, WITHOUT SUCH AGREEMENT, THE VARIANCE PROCEEDINGS SHOULD BE
CONSOLIDATED WITH THE EVIDENTIARY HEARING UNDER SUBPART E.
THIS PRINCIPLE APPLIES TO 301(H) VARIANCES AS WELL AS OTHER TYPES OF
VARIANCES.
ONE COMMENTER ARGUED THAT THIS PROVISION VIOLATED THE APA BY FAILING
TO PROVIDE FOR REBUTTAL TESTIMONY. REBUTTAL RIGHTS, HOWEVER, ARE
ADEQUATELY CONFERRED IN SECTIONS 124.120 AND 124.121.
THIS SECTION HAS BEEN AMENDED TO MAKE CLEAR THAT THE CHIEF
ADMINISTRATIVE LAW JUDGE HAS NO OBLIGATION TO ASSIGN AN ADMINISTRATIVE
LAW JUDGE TO PRESIDE AT HEARINGS NOT SUBJECT BY STATUTE TO THE FORMAL
HEARING REQUIREMENTS OF THE ADMINISTRATIVE PROCEDURES ACT WHEN TO DO SO
WOULD IMPAIR HIS OR HER ABILITY TO STAFF HEARINGS THAT ARE SUBJECT TO
THOSE REQUIREMENTS.
THIS SECTION ALSO HAS BEEN AMENDED TO GIVE THE PRESIDING OFFICER
GREATER CONTROL OVER THE SCHEDULING OF THE PANEL HEARING. FOR EXAMPLE,
IF NEW EVIDENCE COMES IN, OR IF THE EVIDENCE TAKES LONGER THAN EXPECTED
TO ANALYZE, THE PRESIDING OFFICER WILL BE ABLE TO RESCHEDULE THE START
OF THE HEARING OR TO RECESS IT FOR A TIME AFTER IT HAS STARTED.
ONE COMMENTER TOOK THE TITLE OF THIS SECTION AS THE OCCASION TO ASK
WHEN THE FINAL PERMIT WAS ISSUED IN PROCEEDINGS UNDER THIS PART.
IT IS EPA'S POSITION THAT THE FINAL PERMIT IS ISSUED AT THE SAME TIME
AS THE FINAL "DECISION" DESCRIBED IN THIS SECTION.
DURING THE PUBLIC COMMENT PERIOD ON THE PROPOSED CONSOLIDATED
REGULATIONS, THE AMERICAN PETROLEUM INSTITUTE (API) SUBMITTED THEIR
VERSION OF A FLOW CHART OF THE PART 124 PROCEDURES FOR DECISIONMAKIMG,
IT WAS SEVEN FEET LONG. CLEARLY, THE API FLOW CHART EXAGGERATED THE
COMPLEXITY OF THESE REGULATIONS. TO GIVE THE READER A BETTER AND MORE
ACCURATE UNDERSTANDING OF HOW PART 124 WORKS, EPA HAS ATTACHED ITS FLOW
CHART OF THESE PROCEDURES AS AN APPENDIX TO PART 124.
THIS RULEMAKING CONTAINS A SERIES OF REVISIONS AND TECHNICAL
AMENDMENTS TO PART 125, CRITERIA AND STANDARDS FOR THE NATIONAL
POLLUTANT DISCHARGE ELIMINATION SYSTEM. THE TECHNICAL AMENDMENTS
CORRECT CROSS-REFERENCES TO 4- CFR PARTS 122, 123 AND 124, RENDERED
INCORRECT, DUE TO PUBLICATION OF THE CONSOLIDATED PERMIT REGULATIONS
WHERE THE NPDES REGULATIONS PREVIOUSLY APPEARD. TWO CROSS-REFERNECES
HAVE BEEN CORRECTED IN SECTION 125.104(C), WHICH IS PART OF SUBPART K,
THE BEST MANAGEMENT PRACTICES (BMP) REGULATION. THE EFFECTIVE DATE FOR
SUBPART K HAS BEEN DEFERRED UNTIL COMPLETION OF THE TECHNICAL GUIDANCE
DOCUMENT FOR THE BMP PROGRAM. SEE 44 FR 47063 (AUG. 10, 1979) AND 45 FR
17997 (MARCH 20, 1980). IN ADDITION, SECTION 125.3 HAS BEEN REVISED.
THESE REVISIONS WERE PROPOSED ALONG WITH THE DRAFT CONSOLIDATED
APPLICATION FORMS IN THE JUNE 14, 1979 FEDERAL REGISTER (44 FR 34393).
SECTION 125.3(C)(4) -- THIS SECTION ALLOWS PERMIT LIMITS TO BE
WRITTEN IN TERMS OF TOXICITY TO A PARTICULAR SPECIES. THIS REGULATION
WAS PROPOSED IN PART III OF THE JUNE 14, 1979 FEDERAL REGISTER (44 FR
34393). ONLY MINOR WORDING CHANGES HAVE BEEN MADE FROM THE PROPOSAL. A
DETAILED DISCUSSION OF COMMENTS RECEIVED ON THIS REGULATION APPEARS
ELSEWHERE IN TODAY'S FEDERAL REGISTER, IN THE PREAMBLE TO THE PUBLIC
NOTICE OF THE CONSOLIDATED APPLICATION FORM.
SECTION 125.3(G) -- THIS SECTION AUTHORIZES THE DIRECTOR TO USE
INDICATOR POLLUTANTS TO CONTROL TOXIC POLLUTANTS AND HAZARDOUS
SUBSTANCES BY SETTING LIMITS ON INDICATORS AS IF THE INDICATORS WERE
TOXIC OR HAZARDOUS. LIMITS ON INDICATORS (FOR TOXIC POLLUTANTS AND FOR
HAZARDOUS SUBSTANCES) WHICH ARE CONVENTIONAL POLLUTANTS MAY BE SET AT A
LEVEL MORE STRINGENT THAN THE BEST CONVENTIONAL POLLUTION CONTROL
TECHNOLOGY (BCT); AND LIMITS ON INDICATORS (FOR TOXIC POLLUTANTS ONLY)
WHICH ARE NONCONVENTIONAL POLLUTANTS MAY BE SET AT A LEVEL WHICH IS NOT
SUBJECT TO ECONOMIC OR WATEF-QUALITY MODIFICATIONS UNDER SECTION 301 (C)
OR (G) OF CWA. THE DIRECTOR MUST SHOW THAT THE INDICATOR PROVIDES
CONTROL EQUIVALENT TO A DIRECT LIMITATION IS TECHNICALLY OR ECONOMICALLY
INFEASIBLE.
THIS SECTION, INSOFAR AS IT APPLIES TO TOXIC POLLUTANTS, WAS PROPOSED
IN PART III OF THE JUNE 14, 1979 FEDERAL REGISTER (44 FR 34393), AND A
PROPOSAL TO EXTEND IT TO INCLUDE HAZARDOUS SUBSTANCES WAS PUBLISHED ON
AUGUST 29, 1979 (44 FR 50780). A DETAILED DISCUSSION OF THE NEW SECTION
AND THE COMMENTS RECEIVED ON THESE PROPOSALS APPEARS ELSEWHERE IN
TODAY'S FEDERAL REGISTER, IN THE PREAMBLE TO THE PUBLIC NOTICE OF THE
CONSOLIDATED APPLICATION FORM. ONE CHANGE HAS BEEN MADE FROM THE
PROPOSAL; THE SAFEGUARDS AGAINST INAPPROPRIATE USE OF INDICATORS HAVE
BEEN STRENGTHENED BY ADDING A PROHIBITION AGAINST SETTING MORE STRINGENT
LIMITS ON INDICATORS WHERE THE PERMITTEE WOULD BE PREVENTED FROM USING A
METHOD OF TREATMENT WHICH WOULD ASSURE COMPLIANCE WITH A DIRECT
LIMITATION ON A TOXIC POLLUTANT OR HAZARDOUS SUBSTANCE.
NOTE. -- THE ENVIRONMENTAL PROTECTION AGENCY HAS DETEFMINED THAT THIS
DOCUMENT DOES NOT CONSTITUTE A MAJOR REGULATION REQUIRING PREPARATION OF
AN ECONOMIC IMPACT STATEMENT UNDER EXECUTIVE ORDER 12044. IN ACCORDANCE
WITH EXECUTIVE ORDER 12044, EPA WILL REVIEW THE EFFECTIVENESS AND
CONTINUED NEED FOR THE PROVISIONS CONTAINED IN THESE REGULATIONS NO MORE
THAN 5 YEARS AFTER PROMULGATION. AS PART OF THIS EVALUATION WE WILL
CONSIDER COMMENTS FROM THE PUBLIC, PERMIT APPLICANTS, REGIONAL AND STATE
PERMIT WRITERS, AND OTHER AFFECTED PARTIES WITH REGARD TO THE FINANCIAL
AND ADMINISTRATIVE COSTS INCURRED AS A RESULT OF THESE REGULATIONS, AND
WAYS IN WHICH THESE COSTS CAN BE REDUCED.
AS EXPLAINED IN THE PORTION OF THE PREAMBLE DISCUSSING SECTIONS
122.36 AND 122.45, EPA BY THIS NOTICE IS INVITING COMMENT ON ALL
REQUIREMENTS FOR CLASS IV WELLS. SUCH COMMENTS MUST BE RECEIVED BY JULY
15, 1980. SUBMIT COMMENTS TO: ALAN LEVIN, DIRECTOF, STATE PROGRAM
DIVISION (WH-550), OFFICE OF DRINKING WATER, ENVIRONMENTAL PROTECTION
AGENCY, WASHINGTON, D.C. 20460.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 130 OF 225
COSTLE DM ADMINISTRATOR
EPA
113629
REGULATIONS
EPA IS ALSO SCHEDULING A HEARING IN WASHINGTON, D.C. ON TUESDAY, JULY
8, 1980. THE HEARING WILL BE HELD AT THE HEW AUDITORIUM, 330
INDEPENDENCE AVE., S.W., WASHINGTON, D.C., AND WILL LAST FROM 9 A.M. TO
5 P.M., UNLESS CONCLUDED EARLIER.
AUTHORITY: THESE REGULATIONS ARE ISSUED UNDER AUTHORITY OF THE
RESOURCE CONSERVATION AND RECOVERY ACT, 42 U.S.C. SECTION 6901 ET SEQ.;
THE SAFE DRINKING WATER ACT, 42 U.S.C. SECTION 300(F) ET SEQ.; THE CLEAN
WATER ACT, 33 U.S.C. SECTION 1251 ET SEQ.; AND THE CLEAN AIR ACT, 42
U.S.C. SECTION 1857 ET SEQ.
DATED: MAY 2, 1980.
DOUGLAS M. COSTLE, ADMINISTRATOR.
1. 40 CFR IS AMENDED BY REVISING PARTS 122, 123 AND 124 TO READ AS
FOLLOWS:
POLLUTANT DISCHARGE
ELIMINATION SYSTEM; THE
HAZARDOUS WASTE PERMIT
PROGRAM; AND THE UNDERGROUND
INJECTION CONTROL PROGRAM
122.1 WHAT ARE THE CONSOLIDATED PERMIT REGULATIONS?
122.2 PURPOSE AND SCOPE OF PART 122.
122.3 DEFINITIONS.
122.4 APPLICATION FOR A PERMIT.
122.5 CONTINUATION OF EXPIRING PERMITS.
122.6 SIGNATORIES TO PERMIT APPLICATIONS AND REPORTS.
122.7 CONDITIONS APPLICABLE TO ALL PERMITS.
122.8 ESTABLISHING PERMIT CONDITIONS.
122.9 DURATION OF PERMITS.
122.10 SCHEDULES OF COMPLIANCE.
122.11 REQUIREMENTS FOR RECORDING AND REPORTING OF MONITORING
RESULTS.
122.12 CONSIDERATIONS UNDER FEDERAL LAW.
122.13 EFFECT OF A PERMIT.
122.14 TRANSFER OF PERMITS.
122.15 MODIFICATION OR REVOCATION AND REISSUANCE OF PERMITS.
122.16 TERMINATION OF PERMITS.
122.17 MINOR MODIFICATIONS OF PERMITS.
122.18 NONCOMPLIANCE AND PROGRAM REPORTING BY THE DIRECTOR.
122.19 CONFIDENTIALITY OF INFORMATION.
122.21 PURPOSE AND SCOPE OF SUBPART B.
122.22 APPLICATION FOR A PERMIT.
122.23 INTERIM STATUS.
122.24 CONTENTS OF PART A OF THE RCRA PERMIT APPLICATION.
122.25 CONTENTS OF PART B OF THE RCRA PERMIT APPLICATION.
122.26 PERMITS BY RULE.
122.27 EMERGENCY PERMITS.
122.28 ADDITIONAL CONDITIONS APPLICABLE TO ALL RCRA PERMITS.
122.29 ESTABLISHING RCRA PERMIT CONDITIONS.
122.30 INTERIM PERMITS FOR UIC WELLS.
122.31 PURPOSE AND SCOPE OF SUBPART C.
122.32 CLASSIFICATION OF INJECTION WELLS.
122.33 PROHIBITION OF UNAUTHORIZED INJECTION.
122.34 PROHIBITION OF MOVEMENT OF FLUID INTO UNDERGROUND SOURCES OF
DRINKING WATER.
122.35 IDENTIFICATION OF UNDERGROUND SOURCES OF DRINKING WATER AND
EXEMPTED AQUIFERS.
122.36 ELIMINATION OF CERTAIN CLASS IV WELLS.
122.37 AUTHORIZATION OF UNDERGROUND INJECTION BY RULE.
122.38 APPLICATION FOR A PERMIT; AUTHORIZATION BY PERMIT.
122.39 AREA PERMITS.
122.40 EMERGENCY PERMITS.
122.41 ADDITIONAL CONDITIONS APPLICABLE TO ALL UIC PERMITS.
122.42 ESTABLISHING UIC PERMIT CONDITIONS.
122.43 WAIVER OR REQUIREMENTS BY DIRECTOR.
122.44 CORRECTIVE ACTION.
122.45 REQUIREMENTS FOR WELLS INJECTING HAZARDOUS WASTE.
122.51 PURPOSE AND SCOPE OF SUBPART D.
122.52 PROHIBITIONS.
122.53 APPLIKATION FOR A PERMIT.
122.54 CONCENTRATED ANIMAL FEEDING OPERATIONS.
122.55 CONCENTRATED AQUATIC ANIMAL PRODUCTION FACILITIES.
122.56 AQUACULTURE PROJECTS.
122.57 SEPARATE STORM SEWERS.
122.58 SILVICULTURAL ACTIVITIES.
122.59 GENERAL PERMITS.
122.60 ADDITIONAL CONDITIONS APPLICABLE TO ALL NPDES PERMITS.
122.61 ADDITIONAL CONDITIONS APPLICABLE TO SPECIFIED CATEGORIES OF
NPDES PERMITS.
122.62 ESTABLISHING NPDES PERMIT CONDITIONS.
122.63 CALCULATING NPDES PERMIT CONDITIONS.
122.64 DURATION OF CERTAIN NPDES PERMITS.
122.65 DISPOSAL OF POLLUTANTS INTO WELLS, INTO PUBLICLY OWNED
TREATMENT WORKS OR BY LAND APPLICATION.
122.66 NEW SOURCES AND NEW DISCHARGERS.
APPENDIX A TO PART 122 -- NPDES PRIMARY INDUSTRY CATEGORIES.
APPENDIX B TO PART 122 -- NPDES CRITERIA FOR DETERMINING A
CONCENTRATED ANIMAL FEEDING OPERATION (SECTION 122.54). APPENDIX C TO
PART 122 -- NPDES CRITERIA FOR DETERMINING A CONCENTRATED AQUATIC ANIMAL
PRODUCTION FACILITY (SECTION 122.55).
APPENDIX D TO PART 122 -- NPDES PERMIT APPLICATION TESTING
REQUIREMENTS (SECTION 122.53).
AUTHORITY: RESOURCE CONSERVATION AND RECOVERY ACT, 42 U.S.C.
SECTION 6901 ET SEQ.; SAFE DRINKING WATER ACT, 42 U.S.C. SECTION 300F ET
SEQ.; AND CLEAN WATER ACT, 33 U.S.C. SECTION 1251 ET SEQ.
(I) THE HAZARDOUS WASTE MANAGEMENT (HWM) PROGRAM UNDER SUBTITLE C OF
THE SOLID WASTE DISPOSAL ACT, AS AMENDED BY THE RESOURCE CONSERVATION
AND RECOVERY ACT OF 1976 (RCRA) (PUB. L. 94-580, AS AMENDED BY PUB. L.
95-609; 42 U.S.C. SECTION 6901 ET SEQ.);
(II) THE UNDERGROUND INJECTION CONTROL (UIC) PROGRAM UNDER PART C OF
THE SAFE DRINKING WATER ACT (SDWA) (PUB. L. 95-523, AS AMENDED BY PUB.
L. 95-190; 42 U.S.C. SECTION 300F ET SEQ.);
(III) THE NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM (NPDES)
PROGRAM UNDER SECTIONS 318, 402, AND 405(A) OF THE CLEAN WATER ACT (CWA)
(PUB. L. 92-500, AS AMENDED BY PUB. L. 95-217 AND PUB. L. 95-576; 33
U.S.C. SECTION 1251 ET SEQ.);
IV) THE DREDGE OR FILL (404 PROGRAM UNDER SECTION 404 OF THE CLEAN
WATER ACT; AND
(V) THE PREVENTION OF SIGNIFICANT DETERIORATION (PSD) PROGRAM UNDER
REGULATIONS IMPLEMENTING SECTION 165 OF THE CLEAN AIR ACT (CAA), AS
AMENDED, (PUB. L. 88-206 AS AMENDED; 42 U.S.C. SECTION 7401 ET SEQ.)
(2) FOR THE RCRA, UIC, AND NPDES PROGRAMS, THESE REGULATIONS COVER
BASIC EPA PERMITTING REQUIREMENTS (PART 122), WHAT A STATE MUST DO TO
OBTAIN APPROVAL TO OPERATE ITS PROGRAM IN LIEU OF A FEDERAL PROGRAM AND
MINIMUM REQUIREMENTS FOR ADMINISTERING THE APPROVED STATE PROGRAM (PART
123), AND PROCEDURES FOR EPA PROCESSING OF PERMIT APPLICATIONS AND
APPEALS (PART 124). FOR THE 404 PROGRAM, THESE REGULATIONS INCLUDE ONLY
THE REQUIREMENTS WHICH MUST BE MET FOR A STATE TO ADMINISTER ITS OWN
PROGRAM IN LIEU OF THE U.S. ARMY CORPS OF ENGINEERS IN "STATE REGULATED
WATERS," AND PROVISIONS FOR EPA VETOES OF STATE ISSUED 404 PERMITS. FOR
THE PSD PROGRAM, THESE REGULATIONS COVER ONLY PROCEDURES FOR EPA
PROCESSING OF PSD PERMITS IN PART 124.
(B) STRUCTURE. (1) COVERAGE OF PARTS. THESE CONSOLIDATED PERMIT
REGULATIONS ARE INCORPORATED INTO THREE PARTS OF TITLE 40 OF THE CODE OF
FEDERAL REGULATIONS:
(I) PART 122. THIS PART CONTAINS DEFINITIONS FOR ALL OF THE PROGRAMS
EXCPET PSD. IT ALSO CONTAINS BASIC PERMITTING REQUIREMENTS FOR
EPA-ADMINISTERED RCRA, UIC, AND NPDES PROGRAMS, SUCH AS APPLICATION
REQUIREMENTS, STANDARD PERMIT CONDITIONS, AND MONITORING AND REPORTING
REQUIREMENTS.
(II) PART 123. THIS PART DESCRIBES WHAT STATES MUST DO TO OBTAIN EPA
APPROVAL OF THEIR RCRA, UIC, NPDES, OR 404 PROGRAMS. IT ALSO SETS FORTH
THE MINIMUM REQUIREMENTS FOR ADMINISTERING THESE PERMIT PROGRAMS AFTER
APPROVAL.
(III) PART 124. THIS PART ESTABLISHES THE PROCEDURES FOR EPA
ISSUANCE OF RCRA, UIC, NPDES, AND PSD PERMITS. IT ALSO ESTABLISHES THE
PROCEDURES FOR ADMINISTRATIVE APPEALS OF EPA PERMIT DECISIONS.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 131 OF 225
COSTLE DM ADMINISTRATOR
EPA
113630
REGULATIONS
(2) SUBPARTS. PARTS 122, 123, AND 124 ARE EACH ORGANIZED INTO
SUBPARTS. EACH PART HAS A GENERAL SUBPART A WHICH CONTAINS REQUIREMENTS
THAT APPLY TO ALLATHE PROGRAMS COVERED BY THAT PART. ADDITIONAL
SUBPARTS SUPPLEMENT THESE GENERAL PROVISIONS WITH REQUIREMENTS WHICH
APPLY TO ONE OR MORE SPECIFIED PROGRAMS. IN CASE OF ANY INCONSISTENCY
BETWEEN SUBPART A AND ANY PROGRAM-SPECIFIC SUBPART, THE PROGRAM-SPECIFIC
SUBPART IS CONTROLLING.
(3) CERTAIN REQUIREMENTS SET FORTH IN PARTS 122 AND 124 ARE MADE
APPLICABLE TO APPROVED STATE PROGRAMS, INCLUDING STATE 404 PROGRAMS,
BY REFERENCE IN PART 123. THESE REFERENCES ARE SET FORTH IN
SECTION 123.7. IF A SECTION OR PARAGRAPH OF PARTS 122 OR 124 IS
APPLICABLE TO STATES, THROUGH REFERENCE IN SECTION 123.7, THAT
FACT IS SIGNALED BY THE FOLLOWING WORDS AT THE END OF THE
SECTION OR PARAGRAPH HEADING: (APPLICABLE TO STATE PROGRAMS,
SEE SECTION 123.7). IF THESE WORDS ARE ABSENT, THE SECTION (OR
PARAGRAPH) APPLIES ONLY TO EPA-ADMINISTERED PERMITS.
(4) THE STRUCTURE AND COVERAGE OF THESE REGULATIONS BY PROGRAM IS
INDICATED IN THE FOLLOWING CHART. A PERMIT APPLICANT OR PERMITTEE THAT
IS INTERESTED IN FINDING OUT ABOUT ONLY ONE OF THE PROGRAMS OCVERED BY
THESE REGULATIONS CAN USE THIS CHART TO DETERMINE WHICH REGULATIONS TO
READ. IF A STATE IS THE PERMITTING AUTHORITY, THE APPLICANT OR
PERMITTEE SHOULD READ THE STATE LAWS AND PROGRAM REGULATIONS WHICH
IMPLEMENT THE REQUIREMENTS OF PART 123 FOR THE RELEVANT PROGRAM.
FIGURE OMITTED
(C) RELATION TO OTHER REQUIREMENTS. (1) CONSOLIDATED PERMIT
APPLICATION FORMS. APPLICANTS FOR EPA-ISSUED RCRA PART A, UIC, NPDES,
OR PSD PERMITS AND PERSONS SEEKING INTERIM STATUS UNDER RCRA MUST SUBMIT
THEIR APPLICATIONS ON EPA'S CONSOLIDATED PERMIT APPLICATION FORMS WHEN
AVAILABLE. (THERE WILL BE NO FORM FOR RCRA PART B APPLICATIONS AND
THEREFORE NO EPA APPLICATION FORM IS USED. SEE SECTION 122.25.) THESE
FORMS, LIKE THESE CONSOLIDATED REGULATIONS, CONTAIN A GENERAL FORM
COVERING ALL PROGRAMS PLUS SEVERAL PROGRAM-SPECIFIC FORMS. ALTHOUGH
APPLICATION FORMS HAVE BEEN CONSOLIDATED, THEY, LIKE PERMITS, HAVE BEEN
COORDINATED WITHOUT LOSING THEIR SEPARATE LEGAL IDENTITIES. THERE IS NO
"CONSOLIDATED PERMIT." EACH PERMIT AND APPLICATION UNDER A PROGRAM IS A
SEPARATE DOCUMENT. MOST OF THE INFORMATION REQUESTED ON THESE
APPLICATION FORMS (OTHER THAN FORM 5 FOR PSD) IS REQUIRED BY THESE
REGULATIONS. THE ESSENTIAL INFORMATION REQUIRED IN THE GENERAL FORM
(FORM 1) IS LISTED IN SECTION 122.4. THE ADDITIONAL INFORMATION
REQUIRED FOR RCRA PART A APPLICATIONS (FORM 3) IS LISTED IN SECTION
122.24 FOR UIC APPLICATIONS (FORM 4) IN SECTION 122.37, AND FOR NPDES
APPLICATIONS (FORMS 2A-D) IN SECTION 122.53. APPLICANTS FOR
STATE-ISSUED PERMITS MUST USE STATE FORMS WHICH MUST REQUIRE AT A
MINIMUM THE INFORMATION LISTED IN THESE SECTIONS. ALL MINIMUM
INFORMATION REQUIREMENTS FOR STATE 404 PERMIT APPLICATIONS APPEAR IN
SECTION 123.94.
(2) TECHNICAL REGULATIONS. THE FIVE PERMIT PROGRAMS WHICH ARE
COVERED IN THESE CONSOLIDATED PERMIT REGULATIONS EACH HAVE SEPARATE
ADDITIONAL REGULATIONS THAT CONTAIN TECHNICAL REQUIREMENTS FOR THOSE
PROGRAMS. THESE SEPARATE REGULATIONS ARE USED BY PERMIT-ISSUING
AUTHORITIES TO DETERMINE WHAT REQUIREMENTS MUST BE PLACED IN PERMITS IF
THEY ARE ISSUED. THESE SEPARATE REGULATIONS ARE LOCATED AS FOLLOWS:
RCRA. . . . 40 CFR PARTS 260-266.
UIC . . . . 40 CFR PART 146.
NPDES. . . . 40 CFR PARTS 125, 129, 133, 136. 40 CFR SUBCHAPTER N
(PARTS 400-460). 404. . . . 40 CFR PART 230. PSD. . . . 40 CFR PART
52.
(D) AUTHORITY. THE CONSOLIDATION OF THESE PERMIT PROGRAMS INTO ONE
SET OF REGULATIONS IS AUTHORIZED BY SECTIONS 101(F) AND 501(A) OF CWA,
SECTIONS 1006 AND 2002 OF RCRA, SECTION 1450 OF THE SDWA, AND SECTION
301 OF THE CAA.
(E) PUBLIC PARTICIPATION. THIS RULE ESTABLISHES THE REQUIREMENTS FOR
PUBLIC PARTICIPATION IN EPA AND STATE PERMIT ISSUANCE, ENFORCEMENT, AND
RELATED VARIANCE PROCEEDINGS; AND IN THE APPROVAL OF STATE RCRA, UIC,
NPDES, AND 404 PROGRAMS. THESE REQUIREMENTS CARRY OUT THE PURPOSES OF
THE PUBLIC PARTICIPATION REQUIREMENTS OF 40 CFR PART 25 (PUBLIC
PARTICIPATION), AND SUPERSEDE THE REQUIREMENTS OF THAT PART AS THEY
APPLY TO ACTIONS COVERED UNDER PARTS 122, 123, AND 124.
(F) STATE AUTHORITIES. NOTHING IN PARTS 122, 123, OR 124 PRECLUDES
MORE STRINGENT STATE REGULATION OF ANY ACTIVITY COVERED BY THESE
REGULATIONS, WHETHER OR NOT UNDER AN APPROVED STATE PROGRAM, EXCEPT AS
PROVIDED FOR THE RCRA PROGRAM IN SECTION 123.33 (REQUIREMENT THAT STATE
RCRA PROGRAMS UNDER FINAL AUTHORIZATION BE CONSISTENT WITH THE FEDERAL
PROGRAM AND OTHER STATE PROGRAMS).
(A) SUBPART A OF PART 122 CONTAINS DEFINITIONS (SECTION 122.3)
AND BASIC PERMITTING REQUIREMENTS (SECTIONS 122.4 THROUGH 122.19).
DEFINITIONS ARE GIVEN FOR THE RCRA, UIC, NPDES, AND STATE 404
PROGRAMS. DEFINITIONS FOR EPA PROCESSING OF PSD PERMITS ARE IN PART
124, SUBPART C. THE PERMITTING REQUIREMENTS APPLY TO EPA ADMINISTERED
RCRA, UIC, AND NPDES PROGRAMS. (PERMIT PROGRAM REQUIREMENTS FOR THE
FEDERAL 404 PROGRAM ADMINISTERED BY THE CORPS OF ENGINEERS DO NOT APPEAR
IN THESE REGULATIONS BUT ARE FOUND IN 33 CFR PARTS 320-327.) IN
ADDITION, THE PERMITTING REQUIREMENTS APPLY TO STATE-ADMINISTERED RCRA,
UIC, NPDES, AND 404 PROGRAMS TO THE EXTENT SPECIFIED BY CROSS-REFERENCE
IN SECTION 123.7.
(B) SUBPARTS B, C, AND D CONTAIN ADDITIONAL REQUIREMENTS FOR RCRA,
UIC AND NPDES PERMITTING RESPECTIVELY. THEY APPLY TO EPA, AND TO
APPROVED STATES TO THE EXTENT SPECIFIED BY CROSS-REFERENCE IN SECTION
123.7.
THE FOLLOWING DEFINITIONS APPLY TO PARTS 122, 123, AND 124, EXCEPT
PART 124 COVERAGE OF THE PSD PROGRAM (SEE SECTION 124.2). TERMS NOT
DEFINED IN THIS SECTION HAVE THE MEANING GIVEN BY THE APPROPRIATE ACT.
WHEN A DEFINED TERM APPEARS IN A DEFINITION, THE DEFINED TERM IS
SOMETIMES PLACED WITHIN QUOTATION MARKS AS AN AID TO READERS. WHEN A
DEFINITION APPLIES PRIMARILY TO ONE OR MORE PROGRAMS, THOSE PROGRAMS
APPEAR IN PARENTHESES AFTER THE DEFINED TERM.
ACIDIZING (UIC) MEANS THE INJECTION OF ACID THROUGH THE BOREHOLE OR
"WELL" INTO A *FORMATION" TO INCREASE PERMEABILITY AND POROSITY BY
DISSOLVING THE ACID-SOLUBLE PORTION OF THE ROCK CONSTITUENTS.
ADMINISTRATOR MEANS THE ADMINISTRATOR OF THE UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY, OR AN AUTHORIZED REPRESENTATIVE.
APPLICABLE STANDARDS AND LIMITATIONS (NPDES) MEANS ALL STATE,
INTERSTATE, AND FEDERAL STANDARDS AND LIMITATIONS TO WHICH A
"DISCHARGE" OR A RELATED ACTIVITY IS SUBJECT UNDER THE CWA,
INCLUDING "EFFLUENT LIMITATIONS," WATER QUALITY STANDARDS, STANDARDS
OF PERFORMANCE, TOXIC EFFLUENT STANDARDS OR PROHIBITIONS, "BEST
MANAGEMENT PRACTICES," AND PRETREATMENT STANDARDS UNDER SECTIONS
301, 302, 303, 304, 306, 307, 308, 403, AND 405 OF CWA.
APPLICATION MEANS THE EPA STANDARD NATIONAL FORMS FOR APPLYING FOR A
PERMIT, INCLUDING ANY ADDITIONS, REVISIONS OR MODIFICATIONS TO THE
FORMS; OR FORMS APPROVED BY EPA FOR USE IN "APPROVED STATES," INCLUDING
ANY APPROVED MODIFICATIONS OR REVISIONS.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 132 OF 225
COSTLE DM ADMINISTRATOR
EPA
113631
REGULATIONS
FOR RCRA, APPLICATION ALSO INCLUDES THE INFORMATION REQUIRED BY THE
DIRECTOR UNDER SECTION 122.25 (CONTENTS OF PART B OF THE RCRA
APPLICATION).
APPROPRIATE ACT AND REGULATIONS MEANS THE CLEAN WATER ACT (CWA); THE
SOLID WASTE DISPOSAL ACT, AS AMENDED BY THE RESOURCE CONSERVATION AND
RECOVERY ACT (RCRA); OR SAFE DRINKING WATER ACT (SDWA), WHICHEVER IS
APPLICABLE; AND APPLICABLE REGULATIONS PROMULGATED UNDER THOSE
STATUTES. IN THE CASE OF AN "APPROVED STATE PROGRAM" APPROPRIATE ACT
AND REGULATIONS INCLUDES STATE PROGRAM REQUIREMENTS.
APPROVED PROGRAM OR APPROVED STATE MEANS A STATE OR INTERSTATE
PROGRAM WHICH HAS BEEN APPROVED OR AUTHORIZED BY EPA UNDER PART 123.
AQUIFER (RCRA AND UIC) MEANS A GEOLOGICAL "FORMATION", GROUP OF
FORMATIONS, OR PART OF A FORMATION THAT IS CAPABLE OF YIELDING A
SIGNIFICANT AMOUNT OF WATER TO A WELL OR SPRING.
AREA OF REVIEW (UIC) MEANS THE AREA SURROUNDING AN "INJECTION
WELL" DESCRIBED ACCORDING TO THE CRITERIA SET FORTH IN SECTION
146.06.
AVERAGE MONTHLY DISCHARGE LIMITATION (NPDES) MEANS THE HIGHEST
ALLOWABLE AVERAGE OF "DAILY DISCHARGES" OVER A CALENDAR MONTH,
CALCULATED AS THE SUM OF ALL DAILY DISCHARGES MEASURED DURING A CALENDAR
MONTH DIVIDED BY THE NUMBER OF DAILY DISCHARGES MEASURED DURING THAT
MONTH.
AVERAGE WEEKLY DISCHARGE LIMITATION (NPDES) MEANS THE HIGHEST
ALLOWABLE AVERAGE OF "DAILY DISCHARGES" OVER A CALENDAR WEEK DIVIDED BY
THE NUMBER OF DAILY DISCHARGES MEASURED DURING THAT WEEK.
BEST MANAGEMENT PRACTICES ("BMPS") (NPDES AND 404) MEANS SCHEDULES OF
ACTIVITIES, PROHIBITIONS OF PRACTICES, MAINTENANCE PROCEDURES, AND OTHER
MANAGEMENT PRACTICES TO PREVENT OR REDUCE THE POLLUTION OF "WATERS OF
THE UNITED STATES." FOR NPDES, BMPS ALSO INCLUDE TREATMENT REQUIREMENTS,
OPERATING PROCEDURES, AND PRACTICES TO CONTROL PLANT SITE RUNOFF,
SPILLAGE OR LEAKS, SLUDGE OR WASTE DISPOSAL, OR DRAINAGE FROM RAW
MATERIAL STORAGE. FOR STATE 404 PROGRAMS, BMPS ALSO INCLUDE METHODS,
MEASURES, PRACTICES, OR DESIGN AND PERFORMANCE STANDARDS, WICH
FACILITATE COMPLIANCE WITH SECTION 404(B)(1) ENVIRONMENTAL GUIDELINES
(40 CFR PART 230), EFFLUENT LIMITATIONS OR PROHIBITIONS UNDER SECTION
3O7(A), AND APPLICABLE WATER QUALITY STANDARDS.
BMPS (NPDES AND 404) MEANS "BEST MANAGEMENT PRACTICES."
CLOSURE (RCRA) MEANS THE ACT OF SECURING A "HAZARDOUS WASTE
MANAGEMENT FACILITY" PURSUANT TO THE REQUIREMENTS OF 40 CFR PART 264.
CONTAMINANT (UIC) MEANS ANY PHYSICAL, CHEMICAL, BIOLOGICAL, OR
RADIOLOGICAL SUBSTANCE OR MATTER IN WATER.
CONTIGUOUS ZONE (NPDES) MEANS THE ENTIRE ZONE ESTABLISHED BY THE
UNITED STATES UNDER ARTICLE 24 OF THE CONVENTION ON THE TERRITORIAL SEA
AND THE CONTIGUOUS ZONE.
CONTINUOUS DISCHARGE (NPDES) MEANS A "DISCHARGE" WHICH OCCURS WITHOUT
INTERRUPTION THROUGHOUT THE OPERATING HOURS OF THE FACILITY, EXCEPT FOR
INFREQUENT SHUTDOWNS FOR MAINTENANCE, PROCESS CHANGES, OR OTHER SIMILAR
ACTIVITIES.
CWA MEANS THE CLEAN WATER ACT (FORMERLY REFERRED TO AS THE FEDERAL
WATER POLLUTION CONTROL ACT OR FEDERAL WATER POLLUTION CONTROL ACT
AMENDMENTS OF 1972) PUB. L. 92-500, AS AMENDED BY PUB. L. 95-217 AND
PUB. L. 95-576; 33 U.S.C. SECTION 1251 ET SEQ.
DAILY DISCHARGE (NPDS) MEANS THE "DISCHARGE OF A POLLUTANT" MEASURED
DURING A CALENDAR DAY OR ANY 24-HOUR PERIOD THAT REASONABLY REPRESENTS
THE CALENDAR DAY FOR PURPOSES OF SAMPLING. FOR POLLUTANTS WITH
LIMITATIONS EXPRESSED IN UNITS OF MASS, THE 'DAILY DISCHARGE" IS
CALCULATED AS THE TOTAL MASS OF THE POLLUTANT DISCHARGED OVER THE DAY.
FOR POLLUTANTS WITH LIMITATIONS EXPRESSED IN OTHER UNITS OF MEASUREMENT,
THE "DAILY DISCHARGE" IS CALCULATED AS THE AVERAGE MEASUREMENT OF THE
POLLUTANT OVER THE DAY.
DIRECT DISCHARGE (NPDES) MEANS THE "DISCHARGE OF A POLLUTANT."
DIRECTOR MEANS THE REGIONAL ADMINISTRATOR OR THE STATE DIRECTOR, AS
THE CONTEXT REQUIRES, OR AN AUTHORIZED REPRESENTATIVE. WHEN THERE IS NO
"APPROVED STATE PROGRAM," AND THERE IS AN EPA ADMINISTERED PROGRAM,
"DIRECTOR" MEANS THE REGIONAL ADMINISTRATOR. WHEN THERE IS AN APPROVED
STATE PROGRAM, "DIRECTOR" NORMALLY MEANS THE STATE DIRECTOR. IN SOME
CIRCUMSTANCES, HOWEVER, EPA RETAINS THE AUTHORITY TO TAKE CERTAIN
ACTIONS EVEN WHEN THERE IS AN APPROVED STATE PROGRAM. (FOR EXAMPLE,
WHEN EPA HAS ISSUED AN NPDES PERMIT PRIOR TO THE APPROVAL OF A STATE
PROGRAM, EPA MAY RETAIN JURISDICTION OVER THAT PERMIT AFTER PROGRAM
APPROVAL; SEE SECTION 123.71.) IN SUCH CASES, THE TERM "DIRECTOR" MEANS
THE REGIONAL ADMINISTRATOR AND NOT THE STATE DIRECTOR.
DISCHARGE (NPDES) WHEN USED WITHOUT QUALIFICATION MEANS THE
"DISCHARGE OF A POLLUTANT."
DISCHARGE OF A POLLUTANT (NPDES) MEANS:
(A)(1) ANY ADDITION OF ANY "POLLUTANT" OR COMBINATION OF POLLUTANTS
TO "WATERS OF THE UNITED STATES" FROM ANY "POINT SOURCE," OR
(2) ANY ADDITION OF ANY POLLUTANT OR COMBINATION OF POLLUTANTS TO THE
WATERS OF THE "CONTIGUOUS ZONE" OR THE OCEAN FROM ANY POINT SOURCE OTHER
THAN A VESSEL OR OTHER FLOATING CRAFT WHICH IS BEING USED AS A MEANS OF
TRANSPORTATION.
(B) THIS DEFINITION INCLUDES ADDITIONS OF POLLUTANTS INTO WATERS OF
THE UNITED STATES FROM: SURFACE RUNOFF WHICH IS COLLECTED OR CHANNELLED
BY MAN; DISCHARGES THROUGH PIPES, SEWERS, OR OTHER CONVEYANCES OWNED BY
A STATE, MUNICIPALITY, OR OTHER PERSON WHICH DO NOT LEAD TO A TREATMENT
WORKS; AND DISCHARGES THROUGH PIPES, SEWERS, OR OTHER CONVEYANCES
LEADING INTO PRIVATELY OWNED TREATMENT WORKS.
THIS TERM DOES NOT INCLUDE AN ADDITION OF POLLUTANTS BY ANY "INDIRECT
DISCHARGER."
DISCHARGE MONITORING REPORT ("DMR") (NPDES) MEANS THE EPA UNIFORM
NATIONAL FORM, INCLUDING ANY SUBSEQUENT ADDITIONS, REVISIONS, OR
MODIFICATIONS, FOR THE REPORTING OF SELF-MONITORING RESULTS BY
PERMITEES. DMRS MUST BE USED BY "APPROVED STATES" AS WELL AS BY EPA.
EPA WILL SUPPLY DMRS TO ANY APPROVED STATE UPON REQUEST. THE EPA
NATIONAL FORMS MAY BE MODIFIED TO SUBSTITUTE THE STATE AGENCY NAME,
ADDRESS, LOGO, AND OTHER SIMILAR INFORMATION, AS APPROPRIATE, IN PLACE
OF EPA'S.
DISCHARGE OF DREDGED MATERIAL (404) MEANS ANY ADDITION FROM ANY
"POINT SOURCE" OF "DREDGED MATERIAL" INTO "WATERS OF THE UNITED STATES
AND THE RUNOFF OR OVERFLOW FROM A CONTAINED LAND OR WATER DREDGED
MATERIAL DISPOSAL AREA. DISCHARGES OF POLLUTANTS INTO WATERS OF THE
UNITED STATES RESULTING FROM THE SUBSEQUENT ONSHORE PROCESSING OF
DREDGED MATERIAL ARE NOT INCLUDED WITHIN THIS TERM AND ARE SUBJECT TO
THE NPDES PROGRAM EVEN THOUGH THE EXTRACTION AND DEPOSIT OF SUCH
MATERIAL MAY ALSO REQUIRE A PERMIT FROM THE CORPS OF ENGINEERS OR THE
STATE SECTION 404 PROGRAM.
DISCHARGE OF FILL MATERIAL (404) MEANS THE ADDITION FROM ANY "POINT
SOURCE" OF "FILL MATERIAL" INTO "WATERS OF THE UNITED STATES." THE TERM
INCLUDES THE FOLLOWING ACTIVITIES IN WATERS OF THE UNITED STATES:
PLACEMENT OF FILL THAT IS NECESSARY FOR THE CONSTRUCTION OF ANY
STRUCTURE; THE BUILDING OF ANY STRUCTURE OR IMPOUNDMENT REQUIRING ROCK,
SAND, DIRT, OR OTHER MATERIALS FOR ITS CONSTRUCTION; SITE-DEVELOPMENT
FILLS FOR RECREATIONAL, INDUSTRIAL, COMMERCIAL, RESIDENTIAL, AND OTHER
USES; CAUSEWAYS OR ROAD FILLS; DAMS AND DIKES; ARTIFICIAL ISLANDS;
PROPERTY PROTECTION AND/OR RECLAMATION DEVICES SUCH AS RIPRAP, GROINS,
SEAWALLS, BREAKWATERS, AND REVETMENTS; BEACH NOURISHMENT; LEVEES;
FILL FOR STRUCTURES SUCH AS SEWAGE TREATMENT FACILITIES, INTAKE AND
OUTFALL PIPES ASSOCIATED WITH POWER PLANTS AND SUBAQUEOUS UTILITY LINES;
AND ARTIFICIAL REEFS.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 133 OF 225
COSTLE DM ADMINISTRATOR
EPA
113632
REGULATIONS
DISPOSAL (RCRA) MEANS THE DISCHARGE, DEPOSIT, INJECTION, DUMPING,
SPILLING, LEAKING, OR PLACING OF ANY "HAZARDOUS WASTE" INTO OR ON ANY
LAND OR WATER SO THAT SUCH HAZARDOUS WASTE OR ANY CONSTITUENT THEREOF
MAY ENTER THE ENVIRONMENT OR BE EMITTED INTO THE AIR OR DISCHARGED INTO
ANY WATERS, INCLUDING GROUND WATER.
DISPOSAL FACILITY (RCRA) MEANS A FACILITY OR PART OF A FACILITY AT
WHICH "HAZARDOUS WASTE" IS INTENTIONALLY PLACED INTO OR ON THE LAND OR
WATER, AND AT WHICH HAZARDOUS WASTE WILL REMAIN AFTER CLOSURE.
DISPOSAL SITE (404) MEANS THAT PORTION OF THE "WATERS OF THE UNITED
STATES" ENCLOSED WITHIN FIXED BOUNDARIES CONSISTING OF A BOTTOM SURFACE
AREA AND ANY OVERLAYING VOLUME OF WATER. IN THE CASE OF "WETLAND" ON
WHICH WATER IS NOT PRESENT, THE DISPOSAL SITE CONSISTS OF THE WETLAND
SURFACE AREA. FIXED BOUNDARIES MAY CONSIST OF FIXED GEOGRAPHIC POINT(S)
AND ASSOCIATED DIMENSIONS, OR OF A DISCHARGE POINT AND SPECIFIC
ASSOCIATED DIMENSIONS.
DMR (NPDES) MEANS "DISCHARGE MONITORING REPORT".
DRAFT PERMIT MEANS A DOCUMENT PREPARED UNDER SECTION 124.6 INDICATIN
THE DIRECTOR'S TENTATIVE DECISION TO ISSUE OR DENY, MODIFY, REVOKE AND
REISSUE, TERMINATE, OR REISSUE A "PERMIT." A NOTICE OF INTENT TO
TERMINATE A PERMIT, AND A NOTICE OF INTENT TO DENY A PERMIT, AS
DISCUSSED IN SECTION 124.5, ARE TYPES OF "DRAFT PERMITS." A DENIAL OF A
REQUEST FOR MODIFICATION, REVOCATION AND REISSUANCE, OR TERMINATION, AS
DISCUSSED IN SECTION 124.5, IS NOT A "DRAFT PERMIT". A "PROPOSED
PERMIT" IS NOT A "DRAFT PERMIT."
DRILLING MUD (UIC) MEANS A HEAVY SUSPENSION USED IN DRILLING AN
"INJECTION WELL", INTRODUCED DOWN THE DRILL PIPE AND THROUGH THE DRILL
BIT.
DREDGED MATERIAL (404) MEANS MATERIAL THAT IS EXCAVATED OR DREDGED
FROM "WATERS OF THE UNITED STATES."
EFFLUENT LIMITATION (NPDES) MEANS ANY RESTRICTION IMPOSED BY THE
DIRECTOR ON QUANTITIES, DISCHARGE RATES, AND CONCENTRATIONS OF
"POLLUTANTS" WHICH ARE "DISCHARGED" FROM "POINT SOURCES" INTO "WATERS OF
THE UNITED STATES," THE WATERS OF THE "CONTIGUOUS ZONE," OR THE OCEAN.
EFFLUENT LIMITATIONS GUIDELINES (NPDES) MEANS A REGULATION PUBLISHED
BY THE ADMINISTRATOR UNDER SECTION 304(B) OF CWA TO ADOPT OR REVISE
"EFFLUENT LIMITATIONS."
EFFLUENTS (404 MEANS "DREDGED MATERIAL" OR "FILL MATERIAL," INCLUDING
RETURN FLOW FROM CONFINED SITES.
EMERGENCY PERMIT MEANS A RCRA, UIC, OR STATE 404 "PERMIT" ISSUED IN
ACCORDANCE WITH SECTIONS 122.27, 122.40 OR 123.96, RESPECTIVELY.
ENVIRONMENTAL PROTECTION AGENCY ("EPA") MEANS THE UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY.
EPA MEANS THE UNITED STATES "ENVIRONMENTAL PROTECTION AGENCY."
EXEMPTED AQUIFER (UIC) MEANS AN "AQUIFER" OR ITS PORTION THAT MEETS
THE CRITERIA IN THE DEFINITION OF "UNDERGROUND SOURCE OF DRINKING WATER"
BUT WHICH HAS BEEN EXEMPTED ACCORDING TO THE PROCEDURES IN SECTION
122.35(B).
EXISTING HWM FACILITY (RCRA) MEANS A FACILITY WHICH WAS IN OPERATION
OR FOR WHICH CONSTRUCTION HAD COMMENCED, ON OR BEFORE OCTOBER 21, 1976.
CONSTRUCTION HAD COMMENCED IF:
(A) THE OWNER OR OPERATOR HAD OBTAINED ALL NECESSARY FEDERAL, STATE,
AND LOCAL PRECONSTRUCTION APPROVALS OR PERMITS; AND
(B)(1) A CONTINUOUS PHYSICAL, ON-SITE CONSTRUCTION PROGRAM HAD BEGUN,
OR
(2) THE OWNER OR OPERATOR HAD ENTERED INTO CONTRACTUAL OBLIGATIONS --
WHICH CANNOT BE CANCELLED OR MODIFIED WITHOUT SUBSTANTIAL LOSS -- FOR
CONSTRUCTION OF THE FACILITY TO BE COMPLETED WITHIN A REASONABLE TIME.
(NOTE. -- THIS DEFINITION REFLECTS THE LITERAL LANGUAGE OF THE
STATUTE. HOWEVER, EPA BELIEVES THAT AMENDMENTS TO RCRA NOW IN
CONFERENCE WILL SHORTLY BE ENACTED AND WILL CHANGE THE DATE FOR
DETERMINING WHEN A FACILITY IS AN "EXISTING FACILITY" TO ONE NO EARLIER
THAN MAY OF 1980; INDICATIONS ARE THAT THE CONFEREES ARE CONSIDERING
OCTOBER 30, 1980. ACCORDINGLY, EPA ENCOURAGES EVERY OWNER OR OPERATOR
OF A FACILITY WHICH WAS BUILT OR UNDER PHYSICAL CONSTRUCTION AS OF THE
PROMULGATION DATE OF THESE REGULATIONS TO FILE PART A OF ITS PERMIT
APPLICATION SO THAT IT CAN BE QUICKLY PROCESSED FOR INTERIM STATUS WHEN
THE CHANGE IN THE LAW TAKES EFFECT. WHEN THOSE AMENDMENTS ARE ENACTED,
EPA WILL AMEND THIS DEFINITION.)
EXISTING INJECTION WELL (UIC) MEANS AN "INJECTION WELL" OTHER THAN A
"NEW INJECTION WELL."
FACILITY OR ACTIVITY MEANS ANY "HWM FACILITY," UIC "INJECTION WELL,"
NPDES "POINT SOURCE," OR STATE 404 DREDGE OR FILL ACTIVITY, OR ANY OTHER
FACILITY OR ACTIVITY (INCLUDING LAND OR APPURTENANCES THERETO) THAT IS
SUBJECT TO REGULATION UNDER THE RCRA, UIC,NPDES, OR 404 PROGRAMS.
FILL MATERIAL (404) MEANS ANY "POLLUTANT" WHICH REPLACES PORTIONS OF
THE "WATERS OF THE UNITED STATES" WITH DRY LAND OR WHICH CHANGES THE
BOTTOM ELEVATION OF A WATER BODY FOR ANY PURPOSE.
FINAL AUTHORIZATION (RCRA) MEANS APPROVAL BY EPA OF A STATE PROGRAM
WHICH HAS BET THE REQUIREMENTS OF SECTION 3006(B) OF RCRA AND THE
APPLICABLE REQUIREMENTS OF PART 123, SUBPARTS A AND B.
FLUID (UIC) MEANS ANY MATERIAL OR SUBSTANCE WHICH FLOWS OR MOVES
WHETHER IN A SEMISOLID, LIQUID, SLUDGE, GAS, OR ANY OTHE FORM OR STATE.
FORMATION (UIC) MEANS A BODY OF ROCK CHARACTERIZED BY A DEGREE OF
LITHOLOGIC HOMOGENEITY WHICH IS PREVAILINGLY, BUT NOT NECESSARILY,
TABULAR AND IS MAPPABLE ON THE EARTH'S SURFACE OR TRACEABLE IN THE
SUBSURFACE.
FORMATION FLUID (UIC) MEANS "FLUID" PRESENT IN A "FORMATION" UNDER
NATURAL CONDITIONS AS OPPOSED TO INTRODUCED FLUIDS, SUCH AS "DRILLING
MUD."
GENERAL PERMIT (NPDES AND 404) MEANS AN NPDES OR 404 "PERMIT"
AUTHORIZING A CATEGORY OF DISCHARGES UNDER THE CWA WITHIN A GEOGRAPHICAL
AREA. FOR NPDES, A GENERAL PERMIT MEANS A PERMIT ISSUED UNDER SECTION
122.59. FOR 404, A GENERAL PERMIT MEANS A PERMIT ISSUED UNDER SECTION
123.95.
GENERATOR (RCRA) MEANS ANY PERSON, BY SITE LOCATION, WHOSE ACT OR
PROCESS PRODUCES "HAZARDOUS WASTE" IDENTIFIED OR LISTED IN 40 CFR PART
261.
GROUND WATER (RCRA AND UIC) MEANS WATER BELOW THE LAND SURFACE IN A
ZONE OF SATURATION.
HAZARDOUS SUBSTANCE (NPDES) MEANS ANY SUBSTANCE DESIGNATED UNDER 40
CFR PART 116 PURSUANT TO SECTION 311 OF CWA.
HAZARDOUS WASTE (RCRA AND UIC) MEANS A HAZARDOUS WASTE AS DEFINED IN
40 CFR SECTION 261.3.
HAZARDOUS WASTE MANAGEMENT FACILITY ("HWM FACILITY") MEANS ALL
CONTIGUOUS LAND, AND STRUCTURES, OTHER APPURTENANCES, AND IMPROVEMENTS
ON THE LAND, USED FOR TREATING, STORING, OR DISPOSING OF "HAZARDOUS
WASTE." A FACILITY MAY CONSIST OF SEVERAL "TREATMENT," "STORAGE," OR
"DISPOSAL" OPERATIONAL UNITS (FOR EXAMPLE, ONE OR MORE LANDFILLS,
SURFACE IMPOUNDMENTS, OR COMBINATIONS OF THEM).
HWM FACILITY (RCRA) MEANS "HAZARDOUS WASTE MANAGEMENT FACILITY."
INDIRECT DISCHARGER (NPDES) MEANS A NONDOMESTIC DISCHARGER
INTRODUCING "POLLUTANTS" TO A "PUBLICLY OWNED TREATMENT WORKS."
INJECTION WELL (RCRA AND UIC) MEANS A "WELL" INTO WHICH "FLUIDS" ARE
BEING INJECTED.
INJECTION ZONE (UIC) MEANS A GEOLOGICAL "FORMATION," GROUP OF
FORMATIONS, OR PART OF A FORMATION RECEIVING FLUIDS THROUGH A "WELL".
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 134 OF 225
COSTLE DM ADMINISTRATOR
EPA
113633
REGULATIONS
IN OPERATION (RCRA) MEANS A FACILITY WHICH IS TREATING, STORING, OR
DISPOSING OF "HAZARDOUS WASTE."
INTERIM AUTHORIZATION (RCRA) MEANS APPROVAL BY EPA OF A STATE
HAZARDOUS WASTE PROGRAM WHICH HAS MET THE REQUIREMENTS OF SECTION
3006(C) OF RCRA AND APPLICABLE REQUIREMENTS OF PART 123, SUBPART F.
INTERSTATE AGENCY MEANS AN AGENCY OF TWO OR MORE STATES ESTABLISHED
BY OR UNDER AN AGREEMENT OR COMPACT APPROVED BY THE CONGRESS, OR ANY
OTHER AGENCY OF TWO OR MORE STATES HAVING SUBSTANTIAL POWERS OR DUTIES
PERTAINING TO THE CONTROL OF POLLUTION AS DETERMINED AND APPROVED BY THE
ADMINISTRATOR UNDER THE "APPROPRIATE ACT AND REGULATIONS."
MAJOR FACILITY MEANS ANY RCRA, UIC, NPDES, OR 404 "FACILITY OR
ACTIVITY" CLASSIFIED AS SUCH BY THE REGIONAL ADMINISTRATOR, OR, IN THE
CASE OF "APPROVED STATE PROGRAMS," THE REGIONAL ADMINISTRATOR IN
CONJUNCTION WITH THE STATE DIRECTOR.
MANIFEST (RCRA AND UIC) MEANS THE SHIPPING DOCUMENT ORIGINATED AND
SIGNED BY THE "GENERATOR" WHICH CONTAINS THE INFORMATION REQUIRED BY
SUBPART B OF 40 CFR PART 262.
MAXIMUM DAILY DISCHARGE LIMITATION (NPDES) MEANS THE HIGHEST
ALLOWABLE "DAILY DISCHARGE."
MUNICIPALITY (NPDES) MEANS A CITY, TOWN, BOROUGH, COUNTY, PARISH,
DISTRICT, ASSOCIATION, OR OTHER PUBLIC BODY CREATED BY OR UNDER STATE
LAW AND HAVING JURISDICTION OVER DISPOSAL OR SEWAGE, INDUSTRIAL WASTES,
OR OTHER WASTES, OR AN INDIAN TRIBE OR AN AUTHORIZED INDIAN TRIBAL
ORGANIZATION, OR A DESIGNATED AND APPROVED MANAGEMENT AGENCY UNDER
SECTION 208 OF CWA.
NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM MEANS THE NATIONAL
PROGRAM FOR ISSUING, MODIFYING, REVOKING AND REISSUING, TERMINATING,
MONITORING AND ENFORCING PERMITS, AND IMPOSING AND ENFORCING
PRETREATMENT REQUIREMENTS, UNDER SECTIONS 307, 402, 318, AND 405 OF CWA.
THE TERM INCLUDES AN "APPROVED PROGRAM."
NEW DISCHARGER (NPDES) MEANS ANY BUILDING, STRUCTURE, FACILITY,
OR INSTALLATION:
(A)(1) FROM WHICH THERE IS OR MAY BE A NEW OR ADDITIONAL "DISCHARGE
OF POLLUTANTS" AT A "SITE" AT WHICH ON OCTOBER 18, 1972 IT HAD NEVER
DISCHARGED POLLUTANTS; AND
(2) WHICH HAS NEVER RECEIVED A FINALLY EFFECTIVE NPDES "PERMIT" FOR
DISCHARGES AT THAT SITE; AND
(C) WHICH IS NOT A "NEW SOURCE."
(B) THIS DEFINITION INCLUDES AN "INDIRECT DISCHARGER" WHICH COMMENCES
DISCHARGING INTO "WATERS OF THE UNITED STATES." IT ALSO INCLUDES ANY
EXISTING MOBILE POINT SOURCE, SUCH AS AN OFFSHORE OIL DRILLING RIG,
SEAFOOD PROCESSING RIG, SEAFOOD PROCESSING VESSEL, OR AGGREGATE PLANT,
THAT BEGINS DISCHARGING AT A LOCATION FOR THICH IT DOES NOT HAVE AN
EXISTING PERMIT.
NEW HWM FACILITY (RCRA) MEANS A "HAZARDOUS WASTE MANAGEMENT FACILITY"
WHICH BEGAN OPERATION OR FOR WHICH CONSTRUCTION COMMENCED AFTER OCTOBER
21, 1976.
NEW INJECTION WELL (UIC) MEANS A "WELL" WHICH BEGAN INJECTION AFTER A
UIC PROGRAM FOR THE STATE APPLICABLE TO THE WELL IS APPROVED.
NEW SOURCE (NPDES) MEANS ANY BUILDING, STRUCTURE, FACILITY, OR
INSTALLATION FROM WHICH THERE IS OR MAY BE A "DISCHARGE OF POLLUTANTS,"
THE CONSTRUCTION OF WHICH COMMENCED:
(A) AFTER PROMULGATION OF STANDARDS OF PERFORMANCE UNDER SECTION 306
OF CWA WHICH ARE APPLICABLE TO SUCH SOURCE; OR
(B) AFTER PROPOSAL OF STANDARDS OF PERFORMANCE IN ACCORDANCE WITH
SECTION 306 OF CWA WHICH ARE APPLICABLE TO SUCH SOURCE, BUT ONLY IF THE
STANDARDS ARE PROMULGATED IN ACCORDANCE WITH SECTION 306 WITHIN 120 DAYS
OF THEIR PROPOSAL.
NPDES MEANS "NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM."
OFF-SITE (RCRA) MEANS ANY SITE WHICH IS NOT "ON-SITE."
ON-SITE (RCRA) MEANS ON THE SAME OR GEOGRAPHICALLY CONTIGUOUS
PROPERTY WHICH MAY BE DIVIDED BY PUBLIC OR PRIVATE RIGHT(S)-OF-WAY,
PROVIDED THE ENTRANCE AND EXIT BETWEEN THE PROPERTIES IS AT A
CROSS-ROADS INTERSECTION, AND ACCESS IS BY CROSSING AS OPPOSED TO GOING
ALONG, THE RIGHT(S)-OF-WAY. NON-CONTIGUOUS PROPERTIES OWNED BY THE SAME
PERSON BUT CONNECTED BY A RIGHT-OF-WAY WHICH THE PUBLIC DOES NOT HAVE
ACCESS, IS ALSO CONSIDERED ON-SITE PROPERTY.
OWNER OR OPERATOR MEANS THE OWNER OR OPERATOR OF ANY "FACILITY OR
ACTIVITY" SUBJECT TO REGULATION UNDER THE RCRA, UIC, NPDES, OR 404
PROGRAMS.
PERMIT MEANS AN AUTHORIZATION, LICENSE, OR EQUIVALENT CONTROL
DOCUMENT ISSUED BY EPA OR AN "APPROVED STATE" TO IMPLEMENT THE
REQUIREMENTS OF THIS PART AND PARTS 123 AND 124. "PERMIT" INCLUDES RCRA
"PERMIT BY RULE" (SECTION 122.26), UIC AREA PERMIT (SECTION 122.39),
NPDES OR 404 "GENERAL PERMIT" (SECTIONS 122.59 AND 123.95), AND RCRA,
UIC, OR 404 "EMERGENCY PERMIT" (SECTIONS 122.27, 122.40, AND 123.96).
PERMIT DOES NOT INCLUDE RCRA INTERIM STATUS (SECTION 122.23), UIC
AUTHORIZATION BY RULE (SECTION 122.37), OR ANY PERMIT WHICH HAS NOT YET
BEEN THE SUBJECT OF FINAL AGENCY ACTION, SUCH AS A "DRAFT PERMIT" OR A
"PROPOSED PERMIT."
PERMIT BY RULE (RCRA) MEANS A PROVISION OF THESE REGULATIONS STATING
THAT A "FACILITY OR ACTIVITY" IS DEEMED TO HAVE A RCRA PERMIT IF IT
MEETS THE REQUIREMENTS OF THE PROVISION.
PERSON MEANS AN INDIVIDUAL, ASSOCIATION, PARTNERSHIP, CORPORATION,
MUNICIPALITY, STATE OR FEDERAL AGENCY, OR AN AGENT OR EMPLOYEE THEREOF.
PHASE I (RCRA) MEANS THAT PHASE OF THE FEDERAL HAZARDOUS WASTE
MANAGEMENT PROGRAM COMMENCING ON THE EFFECTIVE DATE OF THE LAST OF THE
FOLLOWING TO BE INITIALLY PROMULGATED: 40 CFR PARTS 122, 123, 260, 261,
262, 263, AND 265. PROMULGATION OF PHASE I REFERS TO PROMULGATION OF
THE REGULATIONS NECESSARY FOR PHASE I TO BEGIN.
PHASE II (RCRA) MEANS THAT PHASE OF FEDERAL HAZARDOUS WASTE
MANAGEMENT PROGRAM COMMENCING ON THE EFFECTIVE DATE OF THE FIRST SUBPART
OF 40 CFR PART 264, SUBPARTS F THROUGH R TO BE INITIALLY PROMULGATED.
PROMULGATION OF PHASE II REFERS TO PROMULGATION OF THE REGULATIONS
NECESSARY FOR PHASE II TO BEGIN.
PHYSICAL CONSTRUCTION (RCRA) MEANS EXCAVATION, MOVEMENT OF EARTH,
ERECTION OF FORMS OR STRUCTURES, OR SIMILAR ACTIVITY TO PREPARE AS "HWM
FACILITY" TO ACCEPT "HAZARDOUS WASTE."
PLUGGING (UIC) MEANS THE ACT OR PROCESS OF STOPPING THE FLOW OF
WATER. OIL, OR GAS IN "FORMATIONS" PENETRATED BY A BOREHOLE OR "WELL".
POINT SOURCE (NPDES AND 404) MEANS ANY DISCERNIBLE, CONFINED, AND
DISCRETE CONVEYANCE, INCLUDING BUT NOT LIMITED TO ANY PIPE, DITCH,
CHANNEL, TUNNEL, CONDUIT, WELL, DISCRETE FISSURE, CONTAINER, ROLLING
STOCK, CONCENTRATED ANIMAL FEEDING OPERATION, VESSEL, OR OTHEF FLOATING
CRAFT, FROM WHICH POLLUTANTS ARE OR MAY BE DISCHARGED. THIS TERM DOES
NOT INCLUDE RETURN FLOWS FROM IRRIGATED AGRICULTURE.
POLLUTANT (NPDES AND 404) MEANS DREDGED SPOIL, SOLID WASTE,
INCINERATOR RESIDUE, FILTER BACKWASH, SEWAGE, GARBAGE, SEWAGE SLUDGE,
MUNITIONS, CHEMICAL WASTES, BIOLOGICAL MATERIALS, RADIOACTIVE MATERIALS
(EXCEPT THOSE REGULATED UNDER THE ATOMIC ENERGY ACT OF 1954, AS AMENDED
(42 U.S.C 2011 ET SEQ.)), HEAT, WRECKED OR DISCARDED EQUIPMENT, ROCK,
SAND, CELLAR DIRT AND INDUSTRIAL, MUNICIPAL, AND AGRICULTURAL WASTE
DISCHARGED INTO WATER. IT DOES NOT MEAN:
(A) SEWAGE FROM VESSELS; OR
(B) WATER, GAS, OR OTHER MATERIAL WHICH IS INJECTED INTO A WELL TO
FACILITATE PRODUCTION OF OIL OR GAS, OR WATER DERIVED IN ASSOCIATION
WITH OIL AND GAS PRODUCTION AND DISPOSED OF IN A WELL, IF THE WELL USED
EITHER TO FACILITATE PRODUCTION OR FOR DISPOSAL PURPOSES IS APPROVED BY
AUTHORITY OF THE STATE IN WHICH THE WELL IS LOCATED, AND IF THE STATE
DETERMINES THAT THE INJECTION OR DISPOSAL WILL NOT RESULT IN THE
DEGRADATION OF GROUND OR SURFACE WATER RESOURCES.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 135 OF 225
COSTLE DM ADMINISTRATOR
EPA
113634
REGULATIONS
(NOTE. -- RADIOACTIVE MATERIALS COVERED BY THE ATOMIC ENERGY ACT ARE
THOSE ENCOMPASSED IN ITS DEFINITION OF SOURCE, BYPRODUCT, OR SPECIAL
NUCLEAR MATERIALS. EXAMPLES OF MATERIALS NOT COVERED INCLUDE RADIUM AND
ACCELERATOR-PRODUCED ISOTOPES. SEE TRAIN V. COLORADO PUBLIC INTEREST
RESEARCH GROUP, INC., 426 U.S. 1 (1976)).
POTW MEANS "PUBLICLY OWNED TREATMENT WORKS."
PRIMARY INDUSTRY CATEGORY (NPDES) MEANS ANY INDUSTRY CATEGORY LISTED
IN THE NRDC SETTLEMENT AGREEMENT (NATURAL RESOURCES DEFENSE COUNCIL ET
AL V. TRAIN, 8 E.R.C. 2120 (D.D.C. 1976), MODIFIED 12 E.R.C. 1833
(D.D.C. 1979); ALSO LISTED IN APPENDIX A OF PART 122.
PRIVATELY OWNED TREATMENT WORKS (NPDES) MEANS ANY DEVICE OR SYSTEM
WHICH IS (A) USED TO TREAT WASTES FROM ANY FACILITY WHOSE OPERATOR IS
NOT THE OPERATOR OF THE TREATMENT WORKS AND (B) NOT A "POTW."
PROCESS WASTEWATER (NPDES) MEANS ANY WATER WHICH, DURING
MANUFACTURING OR PROCESSING, COMES INTO DIRECT CONTACT WITH OR RESULTS
FROM THE PRODUCTION OR USE OF ANY RAW MATERIAL, INTERMEDIATE PRODUCT,
FINISHED PRODUCT, BYPRODUCT, OR WASTE PRODUCT.
PROPOSED PERMIT (NPDES) MENAS A STATE NPDES "PERMIT" PREPARED AFTER
THE CLOSE OF THE PUBLIC COMMENT PERIOD (AND, WHEN APPLICABLE, ANY PUBLIC
HEARING AND ADMINISTRATIVE APPEALS) WHICH IS SENT TO EPA FOR REVIEW
BEFORE FINAL ISSUANCE BY THE STATE. A "PROPOSED PERMIT" IS NO A "DRAFT
PERMIT."
PUBLICLY OWNED TREATMENT WORKS ("POTW") MEANS ANY DEVICE OR SYSTEM
USED IN THE TREATMENT (INCLUDING RECYCLING AND RECLAMATION) OF MUNICIPAL
SEWAGE OR INDUSTRIAL WASTES OF A LIZUID NATURE WHICH IS OWNED BY A
"STATE" OR "MUNICIPALITY." THIS DEFINITION INCLUDES SEWERS, PIPES, OR
OTHER CONVEYANCES ONLY IF THEY CONVEY WASTEWATER TO A POTW PROVIDING
TREATMENT.
RADIOACTIVE WASTE (UIC) MEANS ANY WASTE WHICH CONTAINS RADIOACTIVE
MATERIAL IN CONCENTRATIONS WHICH EXCEED THOSE LISTED IN 10 CFR PART 20,
APPENDIX B, TABLE II, COUMN 2, OR EXCEED THE "CRITEREA FOR IDENTIFYING
AND APPLYING CHARACTERISTICS OF HAZARDOUS WASTE AND FOR LISTING
HAZARDOUS WASTE" IN 40 CFR PART 261, WHICHEVER IS APPLICABLE.
RCRA MEANS THE SOLID WASTE DISPOSAL ACT AS AMENDED BY THE RESOURCE
CONSERVATION AND RECOVERY ACT OF 1976 (PUB. L. 94-580, AS AMENDED BY
PUB. L. 95-609, 42 U.S. C SECTION 6901 ET SEQ.).
TECOMMENCING DISCHARGER (NPDES) MEANS A SOURCE WHICH RECOMMENCES
DISCHARGE AFTER TERMINATING OPERATIONS.
REGIONAL ADMINISTRATOR MEANS THE REGIONAL ADMINISTRATOR OF THE
APPROPRIATE REGIONAL OFFICE OF THE ENVIRONMENTAL PROTECTION AGENCY OR
THE AUTHORIZED REPRESENTATIVE OF THE REGIONAL ADMINISTRATOR.
SCHEDULE OF CHOMPLIANCE MEANS A SCHEDULE OF REMEDIAL MEASURES
INCLUDED SEQUENCE OF INTERIM REQUIREMENTS (FOR EXAMPLE, ACTIONS,
OPERATIONS, OR MILESTONE EVENTS) LEADING TO COMPLIANCE WITH THE
"APPROPRIATE ACT AND REGULATIONS."
SDWA MEANS THE SAFE DRINKING WATER ACT (PUB.L. 95-523, AS AMENDED
BY PUB. L. 95-1900; 42 U.S.C SECTION 300F ET SEQ.).
SECONDARY INDUSTRY CATEGORY (NPDES) MEANS ANY INDUSTRY CATEGORY WHICH
IS NOT A "PRIMARY INDUSTRY CATEGORY."
SECRETARY (NPDES AND 404) MEANS THE SECRETARY OF THE ARMY, ACTING
THROUGH THE CHIEF OF ENGINEERS.
SECTION 404 PROGRAM OR STATE 404 PROGRAM OR 404 MEANS AN "APPROVED
STATE PROGRAM" TO REGULATE THE "DISCHARGE OF DREDGED MATERIAL" AND THE
"DISCHARGE OF FILL MATERIAL" UNDER SECTION 404 OF THE CLEAN WATER ACT IN
"STATE REGULATED WATERS."
SEWAGE FROM VESSELS (NPDES) MEANS HUMAN BODY WASTES AND THE WASTES
FROM TOILETS AND OTHER RECEPTACLES INTENDED TO RECEIVE OR RETAIN BODY
WASTES THAT ARE DISCHARGED FROM VESSELS AND REGULATED UNDER THE SECTION
312 OF CWA, EXCEPT THAT WITH RESPECT TO COMMERCIAL VESSELS ON THE GREAT
LAKES THIS TERM INCLUDES GRAYWATER. FOR THE PURPOSES OF THIS
DEFINITION, "GRAYWATER" MEANS GALLEY, BATH, AND SHOWER WATER.
SEWAGE SLUDGE (NPDES) MEANS THE SOLIDS, RESIDUES, AND PRECIPITATE
SEPARATED FROM OR CREATED IN SEWAGE BY THE UNIT PROCESSES OF A "PUBLICLY
OWNED TREATMENT WORKS." "SEWAGE" AS USED IN THIS DEFINITION MEANS ANY
WASTES, INCLUDING WASTES FROM HUMANS, HOUSEHOLDS, COMMERCIAL
ESTABLISHEMENTS, INDUSTRIES, AND STORM WATER RUNOFF, THAT ARE DISCHARGED
TO OR OTHERWISE ENTER A PUBLICLY OWNED TREATMENT WORKS.
SITE MEANS THE LAND OR WATER AREA WHERE ANY "FACILITY OR ACTIVITY" IS
PHYSICALLY LOCATED OR CONDUCTED, INCLUDING ADJACENT LAND USED IN
CONNECTION WITH FACILITY OR ACTIVITY.
STATE MEANS ANY OF THE 50 STATES, THE DISTRICT OF COLUMBIA, GUAM, THE
COMMONWEALTH OF PUERTO RICO, THE VIRGIN ISLANDS, AMERICAN SAMOA, THE
TRUST TERRITORY OF THE PACIFIC ISLANDS (EXCEPT IN THE CASE OF RCRA), AND
THE COMMONWEALTH NORTHERN MARIANA ISLANDS (EXCEPT IN THE CASE OF CWA.)
STATE DIRECTOR MEANS THE CHIEF ADMINISTRATIVE OFFICER OF ANY STATE OR
INTERSTATE AGENCY OPERATING AN "APPROVED PROGRAM," OR THE DELEGATED
REPRESENTATIVE OF THE STATE DIRECTOR. IF RESPONSBILITY IS DIVIDED AMONG
TWO OR MORE STATE OR INTERSTATE AGENCIES. "STATE DIRECTOR" MEANS THE
CHIEF ADMINISTRATIVE OFFICER OF THE STATE OF INTERSTATE AGENCY
AUTHORIZED TO PERFORM THE PARTICULAR PROCEDURE OR FUNCTION TO WHICH
REFERENCE IS MADE.
STATE/EPA AGREEMENT MEANS ANY AGREEMENT BETWEEN THE REGIONAL
ADMINISTRATOR AND THE STATE WHICH COORDINATES EPA AND STATE ACTIVITIES,
RESPONSIBILITIES AND PROGRAMS INCLUDING THOSE UNDER THE RCRA, SDWA, AND
CWA PROGRAMS.
STATE REGULATED WATERS (404) MEANS THOSE "WATERS OF THE UNITED
STATES" IN WHICH THE CORPOS OF ENGINEERS SUSPENDS THE ISSUANCE OF
SECTION 404 PERMITS UPON APPROVAL OF A STATE'S SECTION 404 PERMIT
PROGRAM BY THE ADMINISTRATOR UNDER SECTION 404(H), THESE WATERS SHALL BE
REQUIRED BY SECTION 123.4(H)(1). THE SECRETARY SHALL RETAIN
JURISDICTION OVER THE FOLLOWING WATERS (SEE CWA SECTION 404(G)(1):
(A) WATERS WHICH ARE SUBJECT TO THE EBB AND FLOW OF THE TIDE;
(B) WATERS WHICH ARE PRESENTLY USED, OR ARE SUSCEPTIBLE TO USE IN
THEIR NATURAL CONDITION OR BY REASONABLE IMPROVEMENT AS A MEANS TO
TRANSPORT INTERSTATE OR FOREIGN COMMERCE SHOREWARD TO THEIR ORDINARY
HIGH WATER MARK; AND
(C) "WETLANDS" ADJACENT TO WATERS IN (A) AND (B).
STORAGE (RCRA) MEANS THE HOLDING OF "HAZARDOUS WASTE" FOR A TEMPORAR
PERIOD, AT THE END OF WHICH THE HAZARDOUS WASTE IS TREATED, DISPOSED, OR
STORED ELSEWHERE.
STRATUM (PLURAL STATA) (UIC) MEANS A SINGLE SEDIMENTARY BED OR LAYER
REGARDLESS OF THICKNESS, THAT CONSISTS OF GENERALLY THE SAME KIND
OF ROCK MATERIAL.
TOTAL DISSOLVED SOLIDS (UIC AND NPDES) MEANS THE TOTAL DISSOLVED
(FILTERABLE) SOLIDS AS DETERMINED BY USE OF THE METHODS SPECIFIED IN 40
CFR PART 136.
TOXIC POLLUTANT (NPDES AND 404) MEANS ANY POLLUTANT LISTED AS TOXIC
UNDER SECTION 307(A)(1) OF CWA.
TRANSPORTER (RCRA) MEANS A PERSON ENGAGED IN THE OFF-SITE
TRANSPORTATION OF "HAZARDOUS WASTE" BY AIR, RAIL, HIGHWAY OR WATER.
TREATMENT (RCRA) MEANS ANY METHOD, TECHNIQUE, OR PROCESS, INCLUDING
NEUTRALIZATION, DESIGNED TO CHANGE THE PHYSICAL, CHEMICAL, OR BIOLOGICAL
CHARACTER OR COMPOSITION OF ANY "HAZARDOUS WASTE" SO AS TO NEUTRALIZE
SUCH WASTES, OR SO AS TO RECOVER ENERGY OR MATERIAL RESOURCES FROM THE
WASTE, OR SO AS TO RENDER SUCH WASTE NON-HAZARDOUS, OR LESS HAZARDOUS,
SAFER TO TRANSPORT, STORE OR DISPOSE OF; OR AMENABLE FOR RECOVERY,
AMENDABLE FOR STORAGE, OR REDUCED IN VOLUME.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 136 OF 225
COSTLE DM ADMINISTRATOR
EPA
113635
REGULATIONS
UIC MEANS THE UNDERGROUND INJECTION CONTROL PROGRAM UNDER PART C OF
THE SAFE DRINKING WATER ACT, INCLUDING AN "APPROVED PROGRAM."
UNDERGROUND INJECTION (UIC) MENAS A "WELL INJECTION."
UNDERGROUND SOURCE OF DRINKING WATER ("USDW") (RCRA AND UIX) MEANS AN
"AQUIFER" OR ITS PORTION:
(A)(1) WHICH SUPPLIES DRINKING WATER FOR HUMAN CONSUMPTION; OR
(2) IN WHICH THE GROUND WATER CONTAINS FEWER THAN 10,000 MG/1
"TOTAL DISSOLVED SOLIDS;" AND
(B) WHICH IS NOT AN "EXEMPTED AQUIFER."
USDW (RCRA AND UIC) MEANS "UNDERGROUND SOURCE OF DRINKING WATER."
VARIANCE (NPDES) MENAS ANY MECHANISM OR PROVISION UNDER SECTIONS 301
OF 316 OF CWA OR UNDER 40 CFR PART 125, OR IN THE APPLICABLE "EFFLUENT
LIMITATIONS GUIDELINES" WHICH ALLOWS MODIFICATION TO OR WAIVER OF THE
GENERALLY APPLICABLE EFFLUENT LIMITATION REQUIREMENTS OR TIME DEADLINES
OF CWA. THIS INCLUDES PROVISIONS WHICH ALLOW THE ESTABLISHEMENT OF
ALTERNATIVE LIMITATIO-S BASED ON FUNDAMENTALLY DIFFERENT FACTORS OR ON
SECTIONS 301(G). 301(G), 301(H), 301(I), OR 316(A) OF CWA.
WATERS OF THE UNITED STATES OR WATERS OF THE U.S. MEANS:
(A) ALL WATERS WHICH ARE CURRENTLY USED, WERE USED IN THE PAST, OR
MAY BE SUSCEPTIBLE TO USE IN INTERSTATE OR FOREIGN COMMERCE, INCLUDING
ALL WATERS WHICH ARE SUBJECT TO THE EBB AND FLOW OF THE TIDE;
(B) ALL INTERSTATE WATERS, INCLUDING INTERSTATE "WETLANDS,"
(C) ALL OTHER WATERS SUCH AS INTRASTATE LAKES, RIVERS, STREAMS
(INCLUDING INTERMITTENT STREAMS), MUDFLATS, SANDFLATS, "WETLANDS,"
SLOUGHS, PRAIRIE POTHOLES, WET MEADOWS, PLAYA LAKES, OR NATURAL PONDS
THE USE, DEGRADATION, OR DESTRUCTION OF WHICH WOULD AFFECT OR COULD
AFFECT INTERSATES OR FOREIGN COMMERCE INCLUDING ANY SUCH WATERS:
(1) WHICH ARE OR COULD BE USED BY INTERSTATE OR FOREIGN TRAVELERS FOR
RECREATIONAL OR OTHER PURPOSES;
(2) FROM WHICH FISH OR SHELLFISH ARE OR COULD BE TAKEN AND SOLID IN
INTERSTATE OR FOREIGN COMMERCE; OR
(3) WHICH ARE USED OR COULD BE USED FOR INDUSTRIAL PURPOSES BY
INDUSTRIES IN INTERSTATE COMMERCE;
(D) ALL IMPOUNDMENTS OF WATERS OTHERWISE DEFINED AS WATERS OF THE
UNITED STATES UNDER THIS DEFINITION;
(E) TRIBUTARIES OF WATERS IDENTIFIED IN PARAGRAPHS (1)-(4) OF THIS
DEFINITION;
(F) THE TERRITORIAL SEA; AND
(G) "WETLANDS" ADJACENT TO WATERS (OTHER THAN WATERS THAN ARE
THEMSELVES WETLANDS) IDENTIFIED IN PARAGRAPHS (A)-(F) OF THIS
DEFINITION.
WASTE TREATMENT SYSTEMS, INCLUDING TREATMENT PONDS OR LAGOONS
DESIGNED TO MEET THE REQUIREMENTS OF CWA (OTHER THAN COOLING PONDS AS
DEFINED IN 40 CFR SECTION 423.11(M) WHICH ALSO MEET THE CRITERIA OF THIS
DEFINITION) ARE NOT WATERS OF THE UNITED STATES. THIS EXCLUSION APPLIES
ONLY TO MANMADE BODIES OF WATER WHICH NEITHER WERE ORIGINALLY CREATED IN
WATERS OF THE UNITED STATES (SUCH AS A DISPOSAL ARE IN WETLANDS) NOR
RESULTED FROM THE IMPOUNDMENT OF WATERS OF THE UNITED STATES.
WELL (UIC) MEANS A BORED, DRILLED OR DRIVEN SHAFT, OR A DUG HOLE,
WHOSE DEPTH IS GREATER THAN THE LARGEST SURFACE DIMENSION.
WETLANDS MEANS THOSE AREAS THAT ARE INUNDATED OR SATURATED BY SURFACE
OR GROUND WATER AT A FREQUENCY AND DURATION SUFFICIENT TO SUPPORT, AND
THAT UNDER NORMAL CIRCUMSTANCES DO SUPPORT, A PREVALENCE OF VEGETATION
TYPICALLY ADAPTED FOR LIFE IN SATURATED SOIL CONDITIONS. WETLANDS
GENERALLY INCLUDE SWAMPS, MARSHES, BOGS, AND SIMILAR AREAS.
(APPLICABLE TO STATE PROGRAMS, SEE SECTION 123.7.)
(A) PERMIT APPLICATION. ANY PERSON WHO IS REQUIRED TO HAVE A PERMIT
(INCLUDING NEW APPLICANTS AND PERMITTEES WITH EXPIRING PERMITS) SHALL
COMPLETE, SIGN, AND SUBMIT AN APPLICATION TO THE DIRECTOR AS DESCRIBED
IN THIS SECTION AND IN SECTIONS 122.23 (RCRA), 122.38 (UIC), 122.53
(NPDES), AND 123.94 (404). PERSONS CURRENTLY AUTHORIZED WITH INTERIM
STATUS UNDER RCRA (SECTION 122.23) OR UIC AUTHORIZATION BY RULE (SECTION
122.37) SHALL APPLY FOR PERMITS WHIN REQUIRED BY THE DIRECTOR. PERSONS
COVERED BY RCRA PERMITS BY RULE (SECTION 122.26), AND NPDES OR 404
DISCHARGERS COVERED BY GNERAL PERMITS UNDER SECTION 122.59 OR 123.97
RESPECTIVELY, NEED NOT APPLY, PROCEDURES FOR APPLICATIONS, ISSUANCE AND
ADMINISTRATION OF EMERGENCY PERMITS ARE FOUND EXCLUSIVELY IN SECTIONS
122.27 (RCRA), 122.40 (UIC), AND 123.96 (404).
(B) WHO APPLIES? WHEN A FACILITY OR ACTIVITY IS OWNED BY ONE PERSON
BUT IS OPERATED BY ANOTHER PERSON, IT IS THE OPERATOR'S DUTY TO
OBTAIN A PERMIT, EXCEPT THAT FOR RCRA ONLY, THE OWNER MUST ALSO SIGN
THE PERMIT APPLICATION.
(C) COMPLETENESS. THE DIRECTOR SHALL NOT ISSUE A PERMIT UNDER A
PROGRAM BEFORE RECEIVING A COMPLETE APPLICATION FOR A PERMIT UNDER THAT
PROGRAM EXCEPT FOR NPDES AND 404 GENERAL PERMITS, RCRA PERMITS BY RULE,
OR EMERGENCY PERMITS. AN APPLICATION FOR A PERMIT UNDER A PROGRAM IS
COMPLETE WHEN THE DIRECTOR RECEIVES AN APPLICATION FORM AND ANY
SUPPLEMENTAL INFORMATION WHICH ARE COMPLETED TO HIS OR HER SATISFACTION.
THE COMPLETNESS OF ANY APPLICATION FOR A PERMIT SHALL BE JUDGED
INDEPENDENTLY OF THE STATUS OF ANY OTHER PERMIT APPLICATION OR PERMIT
FOR THE SAME FACILITY OR ACTIVITY. FOR EPA- ADMINISTERED RCRA, UIC, AND
NPDES PROGRAMS, AN APPLICATION WHICH IS REVIEWED UNDER SECTION 124.3 IS
COMPLETE WHEN THE DIRECTOR RECEIVES EITHER A COMPLETE APPLICATION OR THE
INFORMATION LISTED IN A NOTICE OF DEFICIENCY.
(D) INFORMATION REQUIREMENTS. ALL APPLICANTS FOR RCRA, UIC, OR NPDE
PERMITS (FOR STATE 404 PERMITS SEE SECTION 123.94) SHALL PROVIDE
THE FOLLOWING INFORMATION TO THE DIRECTOR, USING THE APPLICATION FOR
PROVIDED BY THE DIRECTOR (ADDITIONAL INFORMATION REQUIRED OF APPLICA
IS SET FORTH IN SECTIONS 122.24 AND 122.25 (RCRA), 122.38 (UIC),
AND 122.53 (NPDES)).
(1) THE ACTIVITIES CONDUCTED BY THE APPLICANT WHICH REQUIRE IT TO
OBTAIN PERMITS UNDER RCRA, UIC, NPDES, OR PSD.
(2) NAME, MAILING ADDRESS, AND LOCATION OF THE FACILITY FOR WHICH THE
APPLICATION IS SUBMITTED.
(3) UP TO FOUR SIC CODES WHICH BEST REFLECT THE PRINCIPAL PRODUCTS OR
SERVICES PROVIDED BY THE FACILITY.
(4) THE OPERATOR'S NAME, ADDRESS, TELEPHONE NUMBER, OWNERSHIP STATUS,
AND STATUS AS FEDERAL, STATE, PRIVATE, PUBLIC, OR OTHER ENTITY.
(5) WHETHER THE FACILITY IS LOCATED ON INDIAN LANDS.
(6) A LISTING OF ALL PERMITS OR CONSTRUCTION APPROVALS RECEIVED OR
APPLIED FOR UNDERA NY OF THE FOLLOWING PROGRAMS:
(I) HAZARDOUS WASTE MANAGEMENT PROGRAM UNDER RCRA.
(II) UIC PROGRAM UNDER SDWA.
(III) NPDES PROGRAM UNDER CWA
(IV) PREVENTION OF SIGNIFICANT DETERIORATION (PSD) PROGRAM UNDER THE
CLEAN AIR ACT.
(V) NONATTAINMENT PROGRAM UNDER THE CLEAN AIR ACT.
(VI) NATIONAL EMISSION STANDARDS FOR HAZARDOUS POLLUTANTS (NESHAPS)
PRECONSTRUCTION APPROVAL UNDER THE CLEAN AIR ACT.
(VII) OCEAN DUMPING PERMITS UNDER THE MARINE PROTECTION RESEARCH AND
SANCTURARIES ACT.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 137 OF 225
COSTLE DM ADMINISTRATOR
EPA
113636
REGULATIONS
(VIII) DREDGE OR FILL PERMITS UNDER SECTION 404 OF CWA.
(IX) OTHER RELEVANT ENVIRONMENTAL PERMITS, INCLUDING STATE PERMITS.
(7) A TOPOGRAPHIC MAP (OR OTHER MAP IF A TOPOGRAPHIC MAP IS
UNAVAILABLE) EXTENDING ONE MILE BEYOND TE PROPERTY BOUNDARIES OF THE
SOURCE, DEPICTING THE FACILITY AND EACH OF ITS INTAKE AND DISCHARGE
STRUCTURES; EACH OF ITS HAZARDOUS WASTE TREATMENT, STORAGE, OR DISPOSAL
FACILITIES; EACH WELL WHERE FLUIDS FROM THE FACILITY ARE INJECTED
UNDERGROUND; AND THOSE WELLS, SPRINGS, OTHER SURFACE WATER BODIES, AND
DRINKING WATER WELLS LISTED IN PUBLIC RECORDS OR OTHERWISE KNOWN TO THE
APPLICANT IN THE MAP AREA.
(8) A BRIEF DESCRIPTION OF THE NATURE OF THE BUSINESS.
(E) RECORDKEEPING. APPLICANTS SHALL KEEP RECORDS OF ALL DATA USED TO
COMPLETE PERMIT APPLICATIONS AND ANY SUPPLEMENTAL INFORMATION SUBMITTED
UNDER SECTIONS 122.4(D), 122.24, AND 122.25 (RCRA); 122.38(UIC);
122.53(NPDES); AND 123.94(404) FOR A PERIOD OF AT LEAST 3 YEARS FROM
THE DATE THE APPLICATION IS SIGNED.
(A) EPA PERMITS. WHEN EPA IS THE PERMIT-ISSUING AUTHORITY, THE
CONDITIONS OF AN EXPIRED PERMIT CONTINUE IN FORCE UNDER 5 U.S.C. SECTION
558(C) UNTIL THE EFFECTIVE DATE OF A NEW PERMIT (SEE SECTION 124.15) IF:
(1) THE PERMITTEE HAS SUBMITTED A TIMELY APPLICATION UNDER SECTION
122.25(RCRA), 122.38(UIC), OR 122.53(NPDES) WHICH IS A COMPLETE (UNDER
SECTION 1'2.4(C)) APPLICATION FOR A NEW PERMIT; AND (2) THE REGIONAL
ADMINISTRATOR, THROUGH NO FAULT OF THE PERMITTEE, DOES NOT ISSUE A NEW
PERMIT WITH AN EFFECTIVE DATE UNDER SECTION 124.15 ON OR BEFORE THE
EXPIRATION DATE OF THE PREVIOUS PERMIT (FOR EXAMPLE, WHEN ISSUANCE IS
IMPRACTICABLE DUE TO TIME OR RESOURCE CONSTRAINTS).
(B) EFFECT. PERMITS CONTINUED UNDER THIS SECTION REMAIN FULLY
EFFECTIVE AND ENFORCEA0LE.
(C) ENFORCEMENT. WHEN THE PERMITTEE IS NOT IN COMPLIANCE WITH THE
CONDITIONS OF THE EXPIRING OR EXPIRED PERMIT THE REGIONAL ADMINISTRATOR
MAY CHOOSE TO DO ANY OR ALL OF THE FOLLOWING:
(1) INITIATE ENFORCEMENT ACTION BASED UPON THE PERMIT WHICH HAS BEEN
CONTINUED;
(2) ISSUE A NOTICE OF INTENT TO DENY THE NEW PERMIT UNDER SECTION
124.6. IF THE PERMIT IS DENIED, THE OWNER OR OPERATOR WOULD THEN BE
REQUIRED TO CEASE THE ACTIVITIES AUTHORIZED BY THE CONTINUED PERMIT OR
BE SUBJECT TO ENFORCEMENT ACTION FOR OPERATING WITHOUT A PERMIT;
(3) ISSUE A NEW PERMIT UNDER PART 124 WITH APPROPRIATE CONDITIONS;
OR
(4) TAKE OTHER ACTIONS AUTORIZED BY THESE REGULATIONS.
(D) STATE CONTINUATION.
(1) AN EPA 1 (OR , IN THE CASE OF 404, CORPS OF ENGINEERS) ISSUED
PERMIT DOES NOT CONTINUE IN FORCE BEYOND ITS EXPIRATION DATE UNDER
FEDERAL LAW IF AT THAT TIME A STATE IS THE PERMITTING AUTHORITY. STATES
AUTHORIZED TO ADMINISTER THE RCRA, UIC, NPDES OR 404 PROGRAMS MAY
CONTINUE EITHER EPA (OR CORPS OF ENGINEERS) OR STATE-ISSUED PERMITS
UNTIL THE EFFECTIVE DATE OF THE NEW PERMITS, IF STATE LAW ALLOWS.
OTHERWISE, THE FACILITY OR ACTIVITY IS OPERATING WITHOUT A PERMIT FROM
THE TIME OF EXPIRATION OF THE OLD PERMIT TO THE EFFECTIVE DATE OF THE
STATE-ISSED NEW PERMIT.
(APPLICABLE TO STATE PROGRAMS, SEE SECTION 123.7.)
(1) APPLICATIONS. ALL PERMIT APPLICATIONS, EXCEPT TOSE SUBMITTED FOR
CLASS II WELLS UNDER THE UIC PROGRAM (SEE PARAGRAPH (B) OF THIS
SECTION), SHALL BE SIGNED AS FOLLOWS:
(1) FOR A CORPORATION: BY A PRINCIPAL EXECUTIVE OFFICER OF AT LEAST
THE LEVEL OF VICE-PRESIDENT;
(2) FOR A PARTNERSHIP OR SOLE PROPRIETORSHIP: BY A GENERAL PARTNER
OR THE PROPRIETOR, RESPECTIVELY; OR
(3) FOR A MUNICIPALITY, STATE, FEDERAL, OR OTHER PUBLIC AGENCY: BY
EITHER A PRINCIPAL EXECUTIVE OFFICER OR RANKING ELECTED OFFICIAL.
(B) REPORTS. ALL REPORTS REQUIRED BY PERMITS, OTHER INFORMATION
REQUESTED BY THE DIRECTOR, AND ALL PERMIT APPLICATIONS SUBMITTED FOR
CLASS II WELLS UNDER SECTION 122.38 FOR THE UIC PROGRAM SHALL BE SIGNED
BY A PERSON DESCRIBED IN PARAGRAP (A) OF THIS SECTION, OR BY A DULY
AUTHORIZED REPRESENTATIVE OF THAT PERSON. A PERSON IS A DULY AUTHORIZED
REPRESENTATIVE ONLY IF:
(1) THE AUTHORIZATION IS MADE IN WRITING BY A PERSON DESCRIBED IN
PARAGRAPH (A) OF THIS SECTION;
(2) THE AUTHORIZATION SPECIFIES EITHER AN INDIVIDUAL OR A POSITION
HAVING RESPONSIBILITY FOR THE OVERALL OPERATION OF THE REGULATED
FACILITY OR ACTIVITY, SUCH AS THE POSITION OF PLANT MANAGER, OPERATOR OF
A WELL OR A WELL FIELD, SUPERINTENDENT, OR POSITION OF EQUIVALENT
RESPONSIBILITY. (A DULY AUTHORIZED REPRESENTATIVE MAY THUS BE EITHER A
NAMED INDIVIDUAL OR ANY INDIVIDUAL OCCUPYING A NAMED POSITION.); AND
(3) THE WRITTEN AUTHORIZATION IS SUBMITTED TO THE DIRECTOR.
(C) CHANGES TO AUTHORIZATION. IF AN AUTHORIZATION UNDER PARAGRAPH
(B) OF THIS SECTION IS NO LONGER ACCURATE BECAUSE A DIFFERENT INDIVIDUAL
OR POSITION HAS RESPONSIBILITY FOR THE OVERALL OPERATION OF THE
FACILITY, A NEW AUTHORIZATION SATISFYING THE REQUIREMENTS OF PARAGRAPH
(B) OF THIS SECTION MUST BE SUBMITTED TO THE DIRECTOR PRIOR TO OR
TOGETHER WITH ANY REPORTS, INFORMATION, OR APPLICATIONS TO BE SIGNED BY
AN AUTHORIZED REPRESENTATIVE.
(D) CERTIFICATION. ANY PERSON SIGNING A DOCUMENT UNDER PARAGRAPHS
(A) OR (B) OF THIS SECTION SHALL MAKE THE FOLLOWING CERTIFICATION:
"I CERTIFY UNDER PENALTY OF LAW THAT I HAVE PERSONALLY EXAMINED
AND AM FAMILIAR WITH THE INFORMATION SUBMITTED IN THIS
DOCUMENT AND ALL ATTACHMENTS AND THAT, BASED ON MY INQUIRY OF
THOSE INDIVIDUALS IMMEDIATELY RESPONSIBLE FOR OBTAINING THE
INFORMATION, I BELIEVE THAT THE INFORMATION IS TRUE, ACCURATE,
AND COMPLETE. I AM AWARE THAT THERE ARE SIGNIFICANT PENALTIES FOR
SUBMITTING FALSE INFORMATION, INCLUDING THE POSSIBILITY OF FINE
AND IMPRISONMENT."
(APPLICABLE TO STATE PROGRAMS, SEE SECTION 123.7.)
THE FOLLOWING CONDITIONS APPLY TO ALL RCRA, UIC, NPDES, AND 404
PERMITS. FOR ADDITIONAL CONDITIONS APPLICABLE TO ALL PERMITS FOR EACH
OF THE PROGRAMS INDIVIDUALLY, SEE SECTION 122.28(RCRA), 122.41(UIC),
122.60 AND 122.61(NPDES) AND 123.97(404). ALL CONDITIONS APPLICABLE TO
ALL PERMITS, AND ALL ADDITIONAL CONDITIONS APPLICAELE TO ALL PERMITS FOR
INDIVIDUAL PROGRAMS, SHALL BE INCORPORATED INTO THE PERMITS EITHER
EXPRESSLY OR BY REFERENCE. IF INCORPORATED BY REFERENCE, A SPECIFIC
CITATION TO THESE REGULATIONS (OR THE CORRESPONDING APPROVED STATE
REGULATIONS) MUST BC GIVEN IN THE PERMIT.
(A) DUTY TO COMPLY. THE PERMITTEE MUST COMPLY WIT ALL CONDITIONS OF
THIS PERMIT. ANY PERMIT NONCOMPLIANCE CONSTITUTES A VIOLATION OF THE
APPROPRIATE ACT AND IS GROUNDS FOR ENFORCEMENT ACTION; FOR PERMIT
TERMINATION, REVOCATION AND REISSUANCE, OR MODIFICATION OR FOR DENIAL OF
A PERMIT RENEWAL APPLICATION.
(B) DITY TO REAPPLY. IF THE PERMITTEE WISHES TO CONTINUE AN ACTIVITY
REGULATED BY THIS PERMIT AFTER THE EXPIRATION DATE OF THIS PERMIT, THE
PERMITTEE MUST APPLY FOR AND OBTAIN A NEW PERMIT.
(C) DUTY TO HALT OR REDUCE ACTIVITY. IT SHALL NOT BE A DEFENSE FOR A
PERMITTEE IN AN ENFORCEMENT ACTION THAT IT WOULD HAVE BEEN NECESSARY TO
HALT OR REDUCT THE PERMITTED ACTIVITY IN ORDER TO MAINTAIN COMPLIANCE
WITH THE CONDITIONS OF THIS PERMIT.
(D) DUTY TO MITIGATE. THE PERMITTEE SHALL TAKE ALL REASONABLE STEPS
TO MINIMIZE OR CORRECT ANY ADVERSE IMPACT ON THE ENVIRONMENT RESULTING
FROM NONCOMPLIANCE WITH THIS PERMIT.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 138 OF 225
COSTLE DM ADMINISTRATOR
EPA
113637
REGULATIONS
(E) PROPER OPERATION AND MAINTENANCE. THE PERMITTEE SHALL AT ALL
TIMES PROPERLY OPERATE AND MAINTAIN ALL FACILITIES AND SYSTEMS OF
TREATMENT AND CONTROL (AND RELATED APPUTENANCES) WHICH ARE INSTALLED OR
USED BY THE PERMITTEE TO ACHIEVE COMPLIANCE WITH THE CONDITIONS OF THIS
PERMIT. PROPER OPERATION AND MAINTENANCE INCLUDES EFFECTIVE
PERFORMANCE, ADEQUATE FUNDING, ADEQUATE OPERATOR STAFFING AND TRAINING,
AND ADEQUATE LABORATORY AND PROCESS CONTROLS, INCLUDING APPROPRIATE
QUALITY ASSURANCE PROCEDURES. THIS PROVISION REQUIRES THE OPERATION OF
BACK-UP OR AUXILIARY FACILITIES OR SIMILAR SYSTEMS ONLY WHEN NECESSARY
TO ACHIEVE COMPLIANCE WITH THE CONDITIONS OF THE PERMIT.
(F) PERMIT ACTIONS. THIS PERMIT MAY BE MODIFIED, REVOKED AND
REISSUED, OR TERMINATED FOR CAUSE. THI FILING OF A REQUEST BY THE
PERMITTEE FOR A PERMIT MODIFICATION, REVOCATION AND REISSUANCE, OR
TERMINATION, OR A NOTIFICATION OF PLANNED CHANGES OR ANTICIPATED
NONCOMPLIANCE, DOES NOT STAY ANY PERMIT CONDITION.
(G) PROPERTY RIGHTS. THIS PERMIT DOES NOT CONVEY ANY PROPERTY RIGHTS
OF ANY SORT, OR ANY EXCLUSIVE PRIVILEGE.
() DUTY TO PROVIDE INFORMATION. THE PERMITTEE SHALL FURNISH TO THE
DIRECTOR, WITHIN A REASONABLE TIME, ANY INFORMATION WHICH THE DIRECTOR
MAY REQUEST TO DETERMINE WHETHER CAUSE EXISTS FOR MODIFYING, REVOKING
AND REISSUING, OR TERMINATING THIS PERMIT, OR TO DETERMINE COMPLIANCE
WITH THIS PERMIT. THE PERMITTEE SHALL ALSO FURNISH TO THE DIRECTOR,
UPON REQUEST, COPIES OF RECORDS REQUIRED TO BE KEPT BY THIS PERMIT.
(I) INSPECTION AND ENTRY. THE PERMITTEE SHALL ALLOW THE DIRECTOR, OR
AN AUTHORIZED REPRESENTATIVE, UPON THE PRESENTATION OF CREDENTIALS AND
OTHER DOCUMENTS AS MAY BE REQUIRED BY LAW TO:
(1) ENTER UPON THE PERMITTEE'S PREMISES WHERE A REGULATED FACILITY OR
ACTIVITY IS LOCATED OR CONDUCTED, OR WHERE RECORDS MUST BE KEPT UNDER
THE CONDITIONS OF THIS PERMIT;
(2) HAVE ACCESS TO AND COPY, AT REASONABLE TIMES, ANY RECORDS THAT
MUST BE KEPT UNDER THE CONDITIONS OF THIS PERMIT;
(3) INSPECT AT REASONABLE TIMES ANY FACILITIES, EQUIPMENT INCLUDING
MONITORING AND CONTROL EQUIPMENT, PRACTICES, OR OPERATIONS REGULATED OR
REQUIRED UNDER THIS PERMIT; AND
(4) SAMPLE OR MONITOR AT REASONABLE TIMES, FOR THE PURPOSED OF
ASSURING PERMIT COMPLIANCE OR AS OTHERWISE AUTHORIZED BY THE APPROPRIATE
ACT, ANY SUBSTANCES OR PARAMETERS AT ANY LOCATION.
(J) MONITORING AND RECORDS.
(1) SAMPLES AND MEASUREMENTS TAKEN FOR THE PURPOSE OF MONITORING
SHALL BE REPRESENTATIVE OF THE MONITORED ACTIVITY.
(2) THE PERMITTEE SHALL RETAIN RECORDS OF ALL MONITORING INFORMATION,
INCLUDING ALL CALIBRATION AND MAINTENANCE RECORDS AND ALL ORIGINAL STRIP
CHART RECORDINGS FOR CONTINUOUS MONITORING INSTRUMENTATION, COPIES OF
ALL REPORTS REQUIRED BY THIS PERMIT, AND RECORDS OF ALL DATA USED TO
COMPLETE THE APPLICATION FOR THIS PERMIT, FOR A PERIOD OF AT LEAST 3
YEARS FROM THE DATE OF THE SAMPLE, MEASUREMENT, REPORT OR APPLICATION.
THIS PERIOD MAY BE EXTENDED BY REQUEST OF THE DIRECTOR AT ANY TIME.
(3) RECORDS OF MONITORING INFORMATION SHALL INCLUDE:
(I) THE DATE, EXACT PLACE AND TIME OF SAMPLING OR MEASUREMENTS;
(II) THE INDIVIDUAL(S) WHO PERFORMED THE SAMPLING OR MEASUREMENTS;
(III) THE DATE(S) ANALYSES WERE PERFORMED;
(IV) THE INDIVIDUAL(S) WHO PERFORMED THE ANALYSES;
(V) THE ANALYTICAL TECHNIQUES OR METHODS USED; AND
(VI) THE RESULTS OF SUCH ANALYSES.
(K) SIGNATORY REQUIREMENT. ALL APPLICATIONS, REPORTS, OR INFORMATION
SUBMITTED TO THE DIRECTOR SHALL BE SIGNED AND CERTIFIED. (SEE SECTION
122.L.)
(L) REPORTING REQUIREMENTS. (1) PLANNED CHANGES. THE PERMITTEE SHALL
GIVE NOTICE TO THE DIRECTOR AS SOON AS POSSIBLE OF ANY PLANNED PHYSICAL
ALTERNATIONS OR ADDITIONS TO THE PERMITTED FACILITY.
(2) ANTICIPATED NONCOMPLIANCE. THE PERMITTEE SHALL GIVE ADVANCE
NOTICE TO THE DIRECTOR OF ANY PLANNED CHANGES IN THE PERMITTED FACILITY
OR ACTIVITY WHICH MAY RESULT IN NONCOMPLIANCE WITH PERMIT REQUIREMENTS.
(3) TRANSFERS. THIS PERMIT IS NOT TRANSFERABLE TO ANY PERSON EXCEPT
AFTER NOTICE TO THE DIRECTOR. THE DIRECTOR MAY REQUIRE MODIFICATION OR
REVOCATION AND REISSUANCE OF THE PERMIT TO CHANGE THE NAME OF THE
PERMITTEE AND INCORPORATE SUCH OTHER REQUIREMENTS AS MAY BE NECESSARY
UNDER THE APPROPRIATE ACT. (SEE SECTION 122.14; IN SOME CASES,
MODIFICATION OR REVOCATION AND REISSUANCE IN MANDATORY.)
(4) MONITORING REPORTS. MONITORING RESULTS SHALL BE REPORTED AT THE
INTERVALS SPECIFIED ELSEWHERE IN THIS PERMIT.
(5)COMPLIANCE SCHEDULES. REPORTS OF COMPLIANCE OR NONCOMPLIANCE
WITH, OR ANY PROGRESS REPORTS ON, INTERIM AND FINAL REQUIREMENTS
CONTAINED IN ANY COMPLIANCE SCHEDULE OF THIS PERMIT SHALL BE SUBMITTED
NO LATER THAN 14 DAYS FOLLOWING EACH SCHEDULE DATE.
(6) TWENTY-FOUR HOUR REPORTING. THE PERMITTEE SHALL REPORT ANY
NONCOMPLIANCE WHICH MAY ENDANGER HEALTH OR THE ENVIRONMENT. ANY
INFORMATION SHALL BE PROVIDED ORALLY WITHIN 24 HOURS FROM THE TIME THE
PERMITTEE BECOMES AWARE OF THE CIRCUMSTANCES. A WRITTEN SUBMISSION
SHALL ALSO BE PROVIDED WITHIN 5 DAYS OF THE TIME THE PERMITTEE BECOMES
AWARE OF THE TIME THE PERMITTEE BECOMES AWARE OF THE CIRCUMSTANCES. THE
WRITTEN SUBMISSION SHALL ALSO BE PROVIDED WITHIN 5 DAYS OF THE TIME THE
PERMITTEE BECOMES AWARE OF THE CIRCUMSTANCES. THE WRITTEN SUBMISSION
SHALL CONTAIN A DESCRIPTION OF THE CONCOMPLIANCE AND ITS CAUSE; THE
PERIOD OF NONCOMPLIANCE, INCLUDING EXACT DATES AND TIMES, AND IF THE
NONCOMPLIANCE HAS NOT BEEN CORRECTED, THE ANTICIPATED TIME IT IS
EXPECTED TO CONTINUE; AND STEPS TAKEN OR PLANNED TO REDUCE, ELIMINATE,
AND PREVENT REOCCURRENCE OF THE NONCOMPLIANCE.
(7) OTHER NONCOMPLIANCE. THE PERMITTEE SHALL REPORT ALL INSTANCES OF
NONCOMPLIANCE AND REPORTED UNDER PARAGRAPHS (1) (4), (5), AND (6) OF
THIS SECTION, AT THE TIME MONITORING REPORTS ARE SUBMITTED. THE REPORTS
SHALL CONTAIN THE INFORMATION LISTED IN PARAGRAPH (1) (6) OF THIS
SECTION.
(8) OTHER INFORMATION. WHERE THE PERMITTEE BECOMES AWARE THAT IT
FAILED TO SUBMIT ANY RELEVANT FACTS IN A PERMIT APPLICATION, OR
SUBMITTED INCORRECT INFORMATION IN A PERMIT APPLICATION OR IN ANY REPORT
TO THE DIRECTOR, IT SHALL PROMPTLY SUBMIT SUCH FACTS OR INFORMATION.
(APPLICABLE TO STATE PROGRAMS, SEE SECTION 122.7.)
(A) ALL PROGRAMS. IN ADDITION TO CONDITIONS REQUIRED IN ALL PERMITS
FOR ALL PROGRAMS (SECTION 122.7), THE DIRECTOR SHALL ESTABLISH
CONDITIONS, AS REQUIRED ON A CASE-BY-CASE BASIS, IN PERMITS FOR ALL
PROGRAMS UNDER SECTIONS 122.9 (DURATION OF PERMITS 122.10(A) (SCHEDULES
OF COMPLIANCE), 122.11 (MONITORING), AND FOR EPA PERMITS ONLY 122.10(B)
(ALTERNATE SCHEDULES OF COMPLIANCE) AND 122.12 (CONSIDERATIONS UNDER
FEDERAL LAW.)
(B) INDIVIDUAL PROGRAMS.
(1) IN ADDITION TO CONDITIONS REQUIRED IN ALL PERMITS FOR A
PARTICULAR PROGRAM (SECTIONS 122.28 FOR RCRA, 122.41 FOR UIC 122.60 AND
122.61 FOR NPDES, AND 123.97 FOR 404), THE DIRECTOR SHALL ESTABLISH
CONDITIONS, AS REQUIRED ON A CASE-BY-CASE BASIS, TO PROVIDE FOR AND
ASSURE COMPLIANCE WITH ALL APPLICABLE REQUIREMENTS OF THE APPROPRIATE
ACT AND REGULATIONS.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 139 OF 225
COSTLE DM ADMINISTRATOR
EPA
113638
REGULATIONS
(2) FOR A STATE ISSUED PERMIT, AN APPLICABLE REQUIREMENT IS A STATE
STATUTORY OR REGULATORY REQUIREMENT WHICH TAKES EFFECT PRIOR TO FINAL
ADMINISTRATIVE DISPOSITION OF A PERMIT. FOR A PERMIT ISSUED BY EPA, AN
APPLICABLE REQUIREMENT IS A STATUTORY OR REGULATORY REQUIREMENT IS A
STATUTORY OR REGULATORY REQUIREMENT (INCLUDING ANY INTERIM FINAL
REGULATION) WHICH TAKES EFFECT PRIOR TO THE ISSUANCE OF THE PERMIT
(EXCEPT AS PROVIDED IN SECTION 124.86(C) FOR RCRA, UIC AND NPDES PERMITS
BEING PROCESSED UNDER SUBPARTS E OR F OF PART 124). SECTION 124.14
(REPORTING OF COMMENT PERIOD) PROVIDES A MEANS FOR REOPENING EPA PERMIT
PROCEEDINGS AT THE DISCRETION OF THE DIRECTOR WHERE NEW REQUIREMENTS
BECOME EFFECTIVE DURING THE PERMITTING PROCESS AND ARE OF SUFFICIENT
MAGNITUDE TO MAKE ADDITIONAL PRECEEDINGS DESIRABLE. FOR STATE AND EPA
ADMINISTERED PROGRAMS, AN APPLICABLE REQUIREMENT IS ALSO ANY REQUIREMENT
WHICH TAKES EFFECT PRIOR TO THE MODIFICATION OR REVOCATION AND
REISSUANCE OF A PERMIT, TO THE EXTENT ALLOWED IN SECTION 122.15.
(3) NEW OR REISSUED PERMITS, AND TO THE EXTENT ALLOWED UNDER SECTION
122.15 MODIFIED OR REVOKED AND REISSUED PERMITS, SHALL INCORPORATE EACH
OF THE APPLICABLE REQUIREMENTS REFERENCED IN SECTIONS 122.29(RCRA),
122.42 (UIC), 122.62 AND 122.63 (NPDES), AND 123.98 (404).
(C) INCORPORATION. ALL PERMIT CONDITIONS SHALL BE INCORPORATED
EITHER EXPRESSLY OR BY REFERENCE. IF INCORPORATED BY REFERENCE A
SPECIFIC CITATION TO THE APPLICABLE REGULATIONS OR REQUIREMENTS MUST BE
GIVEN IN THE PERMIT.
(APPLICABLE TO STATE PROGRAMS, SEE SECTION 123.7.)
(A) NPDES AND SECTION 404. NPDES AND SECTION 404 PERMITS SHALL BE
EFFECTIVE FOR A FIXED TERM NOT TO EXCEED 5 YEARS.
(B) RCRA, RCRA PERMITS SHALL BE EFFECTIVE FOR A FIXED TERM NOT TO
EXCEED 10 YEARS. (SEE ALSO SECTION 122.30 (INTERIM PERMITS FOR
UIC WELLS)).
(C) UIC. UIC PERMITS FOR CLASS I AND CLASS V WELLS SHALL BE
EFFECTIVE FOR A FIXED TERM NOT TO EXCEED 10 YEARS. UIC PERMITS FOR
CLASS II AND III WELLS SHALL BE ISSUED FOR A PERIOD UP TO THE OPERATING
LIFE OF THE FACILITY. THE DIRECTOR SHALL REVIEW EACH ISSUED CLASS II OR
III WELL UIC PERMIT AT LEAST ONCE EVERY 5 YEARS DETERMINE WHETHER IT
SHOULD BE MODIFIED, REVOKED AND FEISSUED TERMINATED, OR A MINOR
MODIFICATION MADE AS PROVIDED IN SECTIONS 122.15, 122.16, AND 122.17.
(D) EXCEPT AS PROVIDED IN SECTION 122.5, THE TERM OF A PERMIT SHALL
NOT BE EXTENDED BY MODIFICATION BEYOND THE MAXIMUM DURATION SPECIFIED IN
THIS SECTION.
(E) THE DIRECTOR MAY ISSUE ANY PERMIT FOR A DURATION THAT IS LESS
THAN THE FULL ALLOWABLE TERM UNDER THIS SECTION.
(A) GENERAL (APPLICABLE TO STATE PROGRAMS, SEE SECTION 123.7). THE
PERMIT MAY, WHEN APPROPRIATE, SPECIFYA SCHEDULE OF COMPLIANCE LEADING TO
COMPLIANCE WITH THE APPROPRIATE ACT AND REGULATIONS.
(1) TIME FOR COMPLIANCE. ANY SCHEDULES OF COMPLIANCE UNDER
THIS SECTION SHALL REQUIRE COMPLIANCE AS SOON AS POSSIBLE.
(I) FOR NPDES, IN ADDITION, SCHEDULES OF COMPLIANCE SHALL REQUIRE
COMPLIANCE NOT LATER THAN THE APPLICABLE STATUTORY DEADLINE UNDER THE
CWA.
(II) FOR UIC, IN ADDITION, SCHEDULES OF COMPLIANCE SHALL REQUIRE
COMPLIANCE NOT LATER THAN 3 YEARS AFTER THE EFFECTIVE DATE OF THE
PERMIT.
(2) FOR NPDES ONLY. THE FIRST NPDES PERMIT ISSUED TO A NEW SOURCE, A
NEW DISCHARGER WHICH COMMENCED DISCHARGE AFTER AUGUST 13, 1979, OR A
RECOMMENCING DISCHARGER SHALL NOT CONTAIN A SCHEDULE OF COMPLIANCE UNDER
THIS SECTION. SEE ALSO SECTION 122.66
(3) INTERIM DATES. EXCEPT AS PROVIDED IN PARACRAPH (B)(1)
(II) OF THIS SECTION, IF A PERMIT ESTABLISED A SCHEDULE OF
COMPLIANCE WHIC EXCEEDS 1 YEAR FROM THE DATE OF PERMIT ISSUANCE,
THE SCHEDULE SHALL SET FORTH INTERIM REQUIREMENTS AND THE DATES
FOR THEIR ACHIEVEMENT.
(I) THE TIME BETWEEN INTERIM DATES SHALL NOT EXCEED 1 YEAR.
(II) IF THE TIME NECESSARY FOR COMPLETION OF ANY INTERIM REQUIREMENT
(SUCH AS THE CONSTRUCTION OF A CONTROL FACILITY) IS MORE THAN 1 YEAR AND
IS NOT READILY DIVISIBLE INTO STAGES FOR COMPLETION, THE PERMIT SHALL
SPECIFY INTERIM DATES FOR THE SUBMISSION OF REPORTS OF PROGRESS TOWARD
COMPLETION OF THE INTERIM REQUIREMENTS AND INDICATE A PROJECTED
COMPLETION DATE.
(NOTE. -- EXAMPLES OF INTERIM REQUIREMENTS INCLUDE: (1) SUBMIT A
COMPLETE STEP 1 CONSTRUCTION GRANT (FOR POTWS); (2) LET A CONTRACT FOR
CONSTRUCTION OF REQUIRED FACILITIES; (3) COMMENCE CONSTRUCTION OF
REQUIRED FACILITIES; (4) COMPLETE CONSTRUCTION OF REQUIRED FACILITIES.)
(4) REPORTING. THE PERMIT SHALL BE WRITTEN TO REQUIRE THAT NO LATER
THAN 14 DAYS FOLLOWING EACH INTERIM DATE AND THE FINAL DATE OF
COMPLIANCE, THE PERMITTEE SHALL NOTIFY THE DIRECTOR IN WRITING OF ITS
COMPLIANCE WITH THE INTERIM OR FINAL DATE OF COMPLIANCE, THE PERMITTEE
SHALL NOTIFY THE DIRECTOR IN WRITING OF ITS COMPLIANCE OR NONCOMPLIANCE
WITH THE INTERIM OR FINAL REQUIREMENTS, OR SUBMIT PROGRESS REPORTS IF
PARAGRAPH (A) (1)(II) OF THIS SECTION IS APPLICABLE.
(B) ALTERNATIVE SCHEDULES OF COMPLIANCE. A RCRA, UIC, OR NPDES
PERMIT APPLICANT OR PERMITTEE MAY CEASE CONDUCTING REGULATED ACTIVITIES
(BY RECEIVING A TERMINAL VOLUME OF HAZARDOUS WASTE FOR HWM FACILITIES,
PLUGGING AND ABANDONMENT FOR UIC WELLS, OR TERMINATION OF DIRECT
DISCHARGE FOR NPDES SOURCES) RATHER THAN CONTINUE TO OPERATE AND MEET
PERMIT REQUIREMENTS AS FOLLOWS:
(1) IF THE PERMITTEE DECIDES TO CEASE CONDUCTING REGULATED ACTIVITES
AT A GIVEN TIME WITHIN THE TERM OF A PERMIT WHICH HAS ALREADY BEEN
ISSUED:
(I) THE PERMIT MAY BE MODIFIED TO CONTAIN A NEW OR ADDITIONAL
SCHEDULE LEADING TO TIMELY CESSATION OF ACTIVITIES; OR
(II) THE PERMITTEE SHALL CEASE CONDUCYING PERMITTED ACTIVITIES
BEFORE NONCOMPLIANCE WITH ANY INTERIM OR FINAL COMPLIANCE
SCHEDULE REQUIREMENT ALREADY SPECIFIED IN THE PERMIT.
(2) IF THE DECISION TO CEASE CONDUCTING REGULATED ACTIVITIES IS MADE
BEFORE ISSUANCE OF A PERMIT WHOSE TERM WILL INCLUDE THE TERMINATION
DATE, THE PERMIT SHALL CONTAIN A SCHEDULE LEADING TO TERMINATION WHICH
WILL ENSURE TIMELY COMPLIANCE WITH APPLICABLE REQUIREMENTS, OR FOR
NPDES, COMPLIANCE NO LATER THAN THE STATUTORY DEADLINE.
(3) IF THE PERMITTEE IS UNDECIDED WHETHER TO CEASE CONDUCTING
REGULATED ACTIVITIES, THE DIRECTOR MAY ISSUE OR MODIFY A PERMIT TO
CONTAIN TWO SCHEDULES AS FOLLOWS:
(I) BOTH SCHEDULES SHALL CONTAIN AN IDENTICAL INTERIM DEADLINE
REQUIRING A FINAL DECISION ON WHETHER TO CEASE CONDUCTING REGULATED
ACTIVITIES NO LATER THAN A DATE WHICH ENSURES SUFFICIENT TIME TO COMPLY
WITH APPLICABLE REQUIREMENTS IN A TIMELY MANNER IF THE DECISION IS TO
CONTINUE CONDUCTING REGULATED ACTIVITIES;
(II) ONE SCHEDULE SHALL LEAD TO TIMELY COMPLIANCE WITH APPLICABLE
REQUIREMENTS, AND FOR NPDES, COMPLIANCE NO LATER THAN THE STATUTORY
DEADLINE;
(III) THE SECOND SCHEDULE SHALL LEAD TO CESSATION OF REGULATED
ACTIVITIES BY A DATE WHICH WILL ENSURE TIMELY COMPLIANCE WITH APPLICABLE
REQUIREMENTS, OR FOR NPDES, COMPLIANCE NO LATER THAN THE STATUTORY
DEADLINE.
(IV) EACH PERMIT CONTAINING TWO SCHEDULES SHALL INCLUDE A REQUIREMENT
THAT AFTER THE PERMITTEE HAS MADE A FINAL DECISION UNDER PARAGRAPH
(B)(3)(I) OF THIS SECTION IT SHALL FOLLOW THE SCHEDULE LEADING TO
COMPLIANCE IF THE DECISION IS TO CONTINUE CONDUCTING REGULATED
ACTIVITIES, AND FOLLOW THE SCHEDULE LEADING TO TERMINATION IF THE
DECISION IS TO CEASE CONDUCTING REGULATED ACTIVITIES.
(4) THE APPLICANT'S OR PERMITTEE'S DECISION TO CEASE CONDUCTING
REGULATED ACTIVITIES SHALL BE EVIDENCED 0Y A FIRM PUBLIC COMMITMENT
SATISFACTORY TO THE DIRECTOR, SUCH AS A RESOLUTION OF THE BOARD OF
DIRECTORS OF A CORPORATION.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 140 OF 225
COSTLE DM ADMINISTRATOR
EPA
113639
REGULATIONS
(APPLICABLE TO STATE PROGRAMS, SEE SECTION 123.7).
ALL PERMITS SHALL SPECIFY:
(A) REQUIREMENTS CONCERNING THE PROPER USE, MAINTENANCE, AND
INSTALLATION, WHEN APPROPRIATE, OF MONITORING EQUIPMENT OR METHODS
(INCLUDING BIOLOGICAL MONITORING METHODS WHEN APPROPRIATE);
(B) REQUIRED MONITORING INCLUDING TYPE, INTERVALS, AND FREQUENCY
SUFFICIENT TO YIELD DATA WHICH ARE REPRESENTATIVE OF THE MONITORED
ACTIVITY INCLUDING, WHEN APPROPRIATE, CONTINUOUS MONITORING;
(C) APPLICABLE REPORTING REQUIREMENTS BASED UPON THE IMPACT OF THE
REGULATED ACTIVITY AND AS SPECIFIED IN PARTS 264 AND 266 (RCRA), PART
146 (UIC), SECTION 122.62 (NPDES), AND, WHEN APPLICABLE, 40 CFR PART 230
(404). REPORTING SHALL BE NO LESS FREQUENT THAN SPECIFIED IN THE ABOVE
REGULATIONS.
PERMITS SHALL BE ISSUED IN A MANNER AND SHALL CONTAIN CONDITIONS
CONSISTENT WITH REQUIREMENTS OF APPLICABLE FEDERAL LAWS. THESE LAWS MAY
INCLUDE:
(A) THE WILD AND SCENIC RIVERS ACT, 16 U.S.C. 1273 ET SEQ. SECTION 7
OF THE ACT PROHIBITS THE REGIONAL ADMINISTRATOR FROM ASSISTING BY
LICENSE OR OTHERWISE THE CONSTRUCTION OF ANY WATER RESOURCES PROJECT
THAT WOULD HAVE A DIRECT, ADVERSE EFFECT ON THE VALUES FOR WHICH A
NATIONAL WILD AND SCENIC RIVER WAS ESTABLISHED.
(B) THE NATIONAL HISTORIC PRESERVATION ACT OF 1966, 16 U.S.C. 470 ET
SEQ. SECTION 106 OF THE ACT AND IMPLEMENTING REGULATION (36 CFR PART
800) REQUIRE THE REGIONAL ADMINISTRATOR BEFORE ISSUING A LICENSE, TO
ADOPT MEASURES WHEN FEASIBLE TO MITIGATE POTENTIAL ADVERSE EFFECTS OF
THE LICENSED ACTIVITY AND PROPERTIES LISTED OR ELIGIBLE FOR LISTING IN
THE NATIONAL REGISTER OF HISTORIC PLACES. THE ACT'S REQUIREMENTS ARE TO
BE IMPLEMENTED IN COOPERATION WITH STATE HISTORIC PRESERVATION OFFICERS
AND UPON NOTICE TO, AND WHEN APPROPRIATE, IN CONSULTATION WITH THE
ADVISORY COUNCIL ON HISTORIC PRESERVATION.
(C) THE ENDANGERED SPECIES ACT, 16 U.S.C. 1531 ET SEQ. SECTION 7 OF
THE ACT AND IMPLEMENTING REGULATIONS (50 CFR PART 402) REQUIRE THE
REGIONAL ADMINISTRATOR TO ENSURE, IN CONSULTATION WITH THE SECRETARY OF
THE INTERIOR OR COMMERCE, THAT ANY ACTION AUTHORIZED BY EPA IS NOT
LIKELY TO JEOPARDIZE THE CONTINUED EXISTENCE OF ANY ENDANGERED OR
THREATENED SPECIES OR ADVERSELY AFFECT ITS CRITICAL HABITAT.
(D) THE COASTAL ZONE MANAGEMENT ACT, 16 U.S.C. 1451 ET SEQ. SECTION
307(C) OF THE ACT AND IMPLEMENTING REGULATIONS (15 CFR) PART 930)
PROHIBIT EPA FROM ISSUING A PERMIT FOR AN ACTIVITY AFFECTING LAND OR
WATERUSE IN THE COASTAL ZONE UNTIL THE APPLICANT CERTIFIES THAT THE
PROPOSED ACTIVITY COMPLIES WITH THE STATE COASTAL ZONE MANAGEMENT
PROGRAM, AND THE STATE OR ITS DESIGNATED AGENCY CONCURS WITH THE
CERTIFICATION (OR THE SECRETARY OF COMMERCE OVERRIDES THE STATE'S
NONCONCURRENCE).
(E) THE FISH AND WILDLIFE COORDINATION ACT, 16 U.S.C. 661 ET SEQ.,
REQUIRES THAT THE REGIONAL ADMINISTRATOR, BEFORE ISSUING A PERMIT
PROPOSING OR AUTHORIZING THE IMPOUNDMENT (WITH CERTAIN EXEMPTIONS),
DIVERSION, OR OTHER CONTROL OR MODIFICATION OF ANY BODY OF WATER,
CONSULT WITH THE APPROPRIATE STATE AGENCY EXERCISING JURISDICTION OVER
WILDLIFE RESOURCES TO CONSERVE THOSE RESOURCES.
(F) EXECUTIVE ORDERS. (RESERVED.)
(G) FOR NPDES ONLY, THE NATIONAL ENVIRONMENTAL POLICY ACT, 33 U.S.C.
4321 ET SEQ., MAY REQUIRE PREPARATION OF AN ENVIRONMENTAL IMPACT
STATEMENT AND THE INCLUSION OF EIS-RELATED PERMIT CONDITIONS, AS
PROVIDED IN SECTION 122.67(C).
(A) (APPLICABLE TO STATE PROGRAMS, SEE SECTION 123.7(A)). EXCEPT FOR
CLASS II AND III WELLS UNDER UIC, AND EXCEPT FOR ANY TOXIC EFFLUENT
STANDARDS AND PROHIBITIONS IMPOSED UNDER SECTION 307 OF THE CWA FOR
NPDES, COMPLIANCE WITH A PERMIT DURING ITS TERM CONSTITUTES COMPLIANCE,
FOR PURPOSES OF ENFORCEMENT, WITH SUBTITLE C OF RCRA, PART C OF SWDA,
SECTIONS 301, 302, 306, 307, 318, 403, AND 405 OF CWA FOR NPDES, AND
SECTIONS 301, 307, AND 403 OF CWA FOR 404. HOWEVER, A PERMIT MAY BE
MODIFIED, REVOKED AND REISSUED, OR TERMINATED DURING ITS TERM FOR CAUSE
AS SET FORTH IN SECTIONS 122.15 AND 122.16.
(B) (APPLICABLE TO STATE PROGRAMS, SEE SECTION 123.7(A).) THE
ISSUANCE OF A PERMIT DOES NOT CONVEY ANY PROPERTY RIGHTS OF ANY SORT, OR
ANY EXCLUSIVE PRIVILEGE.
(C) THE ISSUANCE OF A PERMIT DOES NOT AUTHORIZE ANY INJURY TO PERSONS
OR PROPERTY OR INVASION OF OTHER PRIVATE RIGHTS, OR ANY INFRINGEMENT OF
STATE OR LOCAL LAW OR REGULATIONS.
(APPLICABLE TO STATE PROGRAMS, SEE SECTION 122.7.)
(A) TRANSFERS BY MODIFICATION. EXCEPT AS PROVIDED IN PARAGRAPH (B)
OF THIS SECTION, A PERMIT MAY BE TRANSFERRED BY THE PERMITTEE TO A NEW
OWNER OR OPERATOR ONLY IF THE PERMIT HAS BEEN MODIFIED OR REVOKED AND
REISSUED (UNDER SECTION 122.15(B) (2)), OR A MINOR MODIFICATION MADE
(UNDER SECTION 122.17(D)), TO IDENTIFY THE NEW PERMITTEE AND INCORPORATE
SUCH OTHER REQUIREMENTS AS MAY BE NECESSARY UNDER THE APPROPRIATE ACT.
(B) AUTOMATIC TRANSFERS. AS AN ALTERNATIVE TO TRANSFERS UNDER
PARAGRAPH (A) OF THIS SECTION, ANY NPDES PERMIT OR UIC PERMIT FOR A WELL
NOT INJECTING HAZARDOUS WASTEMAY BE AUTOMATICALLY TRANSFERRED TO A NEW
PERMITTEE IF:
(1) THE CURRENT PERMITTEE NOTIFIES THE DIRECTOR AT LEAST 30 DAYS IN
ADVANCE OF THE PROPOSED TRANSFER DATE IN PARAGRAPH (B) (2) OF THIS
SECTION;
(2) THE NOTICE INCLUDES A WRITTEN AGREEMENT BETWEEN THE EXISTING AND
NEW PERMITTEES CONTAINING A SPECIFIC DATE FOR TRANSFER OF PERMIT
RESPONSIBILITY, COVERAGE, AND LIABILITY BETWEEN THEM AND, IN THE CASE OF
UIC PERMITS, THE NOTICE DEMONSTRATES THAT THE FINANCIAL RESPONSIBILITY
REQUIREMENTS OF SECTION 122.42(G) WILL BE MET BY THE NEW PERMITTEE; AND
(3) THE DIRECTOR DOES NOT NOTIFY THE EXISTING PERMITTEE AND THE
PROPOSED NEW PERMITTEE OF HIS OR HER INTENT TO MODIFY OR REVOKE AND
REISSUE THE PERMIT. A MODIFICATION UNDER THIS SUBPARAGRAPH MAY ALSO BE
A MINOR MODIFICATION UNDER SECTION 122.17. IF THIS NOTICE IS NOT
RECEIVED, THE TRANSFER IS EFFECTIVE ON THE DATE SPECIFIED IN THE
AGREEMENT MENTIONED IN PARAGRAPH (B) (2) OF THIS SECTION.
(APPLICABLE TO STATE PROGRAMS, SEE SECTION 123.7).
WHEN THE DIRECTOR RECEIVES ANY INFORMATION (FOR EXAMPLE, INSPECTS THE
FACILITY, RECEIVES INFORMATIONSUBMITTED BY THE PERMITTEE AS REQUIRED IN
THE PERMIT (SEE SECTION 122.7), RECEIVES A REQUEST FOR MODIFICATION OR
REVOCATION AND REISSUANCE UNDER SECTION 124.5, OR CONDUCTS A REVIEW OF
THE PERMIT FILE) HE OR SHE MAY DETERMINE WHETHER OR NOT ONE OR MORE OF
THE CAUSES LISTED IN PARAGRAPHS (A) AND (B) OF THIS SECTION FOR
MODIFICATION OR REVOCATION AND REISSUANCE OR BOTH EXIST. IF CAUSE
EXISTS, THE DIRECTOR MAY MODIFY OR REVOKE AND REISSUE THE PERMIT
ACCORDINGLY, SUBJECT TO THE LIMITATIONS OF PARAGRAPH (C) OF THIS
SECTION, AND MAY REQUEST AN UPDATED APPLICATION IF NECESSARY. WHEN A
PERMIT IS MODIFIED, ONLY THE CONDITIONS SUBJECT TO MODIFICATION ARE
REOPENED. IF A PERMIT IS REVOKED AND REISSUED, THE ENTIRE PERMIT IS
REOPENED AND SUBJECT TO REVISION AND THE PERMIT IS REISSUED FOR A NEW
TERM. SEE SECTION 124.5(C)(2). IF CAUSE DOES NOT EXIST UNDER THIS
SECTION OR SECTION 122.17, THE DIRECTOR SHALL NOT MODIFY OR REVOKE AND
REISSUE THE PERMIT. IF A PERMIT MODIFICATION SATISFIES THE CRITERIA IN
SECTION 122.17 FOR "MINOR MODIFICATIONS" THE PERMIT MAY BE MODIFIED
WITHOUT A DRAFT PERMIT OR PUBLIC REVIEW.
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EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
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REGULATIONS
OTHERWISE, A DRAFT PERMIT MUST BE PREPARED AND OTHER PROCEDURES IN
PART 124 (OR PROCEDURES OF AN APPROVED STATE PROGRAM) FOLLOWED.
(A) CAUSES FOR MODIFICATION. THE FOLLOWING ARE CAUSES FOR
MODIFICATION BUT NOT REVOCATION AND REISSUANCE OF PERMITS. HOWEVER, FOR
CLASS II OR III WELLS UNDER UIC, THE FOLLOWING MAY BE CAUSES FOR
REVOCATION AND REISSUANCE AS WELL AS MODIFICATION; AND THE FOLLOWING
MAY BE CAUSES FOR REVOCATION AND REISSUANCE AS WELL AS MODIFICATION
UNDER ANY PROGRAM WHEN THE PERMITTEE REQUESTS OR AGREES.
(1) ALTERATIONS. THERE ARE MATERIAL AND SUBSTANTIAL ALTERATIONS OR
ADDITIONS TO THE PERMITTED FACILITY OR ACTIVITY WHICH OCCURRED AFTER
PERMIT ISSUANCE WHICH JUSTIFY THE APPLICATION OF PERMIT CONDITIONS THAT
ARE DIFFERENT OR ABSENT IN THE EXISTING PERMIT.
(NOTE. -- FOR NPDES, CERTAIN RECONSTRUCTION ACTIVITIES MANY CAUSE THE
NEW SOURCE PROVISIONS OF SECTION 122.67 TO BE APPLICABLE.)
(2) INFORMATION. THE DIRECTOR HAS RECEIVED INFORMATION. PERMITS
OTHER THAN FOR UIC CLASS II AND III WELLS MAY BE MODIFIED DURING THEIR
TERMS FOR THIS CAUSE ONLY IF THE INFORMATION WAS NOT AVAILABLE AT THE
TIME OF PERMIT ISSUANCE (OTHER THAN REVISED REGULATIONS, GUIDANCE, OR
TEST METHODS) AND WOULD HAVE JUSTIFIED THE APPLICATION OF DIFFERENT
PERMIT CONDITIONS AT THE TIME OF ISSUANCE. FOR UIC AREA PERMITS
(SECTION 122.39), NPDES GENERAL PERMITS (SECTION 122.59) AND 404 GENERAL
PERMITS (SECTION 123.95) THIS CAUSE SHALL INCLUDE ANY INFORMATION
INDICATING THAT CUMULATIVE EFFECTS ON THE ENVIRONMENT ARE UNACCEPTABLE.
(3) NEW REGULATIONS. THE STANDARDS OR REGULATIONS ON WHICH THE
PERMIT WAS BASED HAVE BEEN CHANGED BY PROMULGATION OF AMENDED STANDARDS
OR REGULATIONS OR BY JUDICIAL DECISION AFTER THE PERMIT WAS ISSUED.
PERMITS OTHER THAN FOR UIC CLASS II OR III WELLS MAY BE MODIFIED DURING
THEIR TERMS FOR THIS CAUSE ONLY AS FOLLOWS:
(I) FOR PROMULGATION OF AMENDED STANDARDS OR REGULATIONS, WHEN:
(A) THE PERMIT CONDITION REQUESTED TO BE MODIFIED WAS BASED ON A
PROMULGATED PART 260-266 (RCRA) OR PART 146 (UIC) REGULATION,
OR A PROMULGATED EFFLUENT LIMITATION GUIDELINE OR EPA APPROVED
OR PROMULGATED WATER QUALITY STANDARDS (NPDES); AND
(B) EPA HAS REVISED, WITHDRAWN, OR MODIFIED THAT PORTION OF THE
REGULATION OR EFFLUENT LIMIATIONS GUIDELINE ON WHICH THE PERMIT
CONDITION WAS BASED, OR HAS APPROVED A STATE ACTION WITH REGARD TO A
WATER QUALITY STANDARD ON WHICH THE PERMIT CONDITION WAS BASED; AND
(C) A PERMITTEE REQUESTS MODIFICATION IN ACCORDANCE WITH SECTION
124.5 WITHIN NINETY (90) DAYS AFTER FEDERAL REGISTER NOTICE OF THE
ACTION ON WHICH THE REQUEST IS BASED.
(II) FOR JUDICIAL DECISION, A COURT OF COMPETENT JURISDICTION HAS
REMANDED AND STAYED EPA PROMULGATED REGULATIONS OR EFFLUENT LIMITATION
GUIDELINES, IF THE REMAND AND STAY CONCERN THAT PORTION OF THE
REGULATIONS OR GUIDELINES ON WHICH THE PERMIT CONDITION WAS BASED AND A
REQUEST IS FILED BY THE PERMITTEE IN ACCORDANCE WITH SECTION 124.5
WITHIN NINETY (90) DAYS OF JUDICIAL REMAND.
(III) FOR CHANGES BASED UPON MODIFIED STATE CERTIFICATIONS OF NPDES
PERMITS, SEE SECTION 124.55(B).
(COMPLIANCE SCHEDULES. THE DIRECTOR DETERMINES GOOD CAUSE EXISTS FOR
MODIFICATION OF A COMPLIANCE SCHEDULE, SUCH AS AN ACT OF GOD, STRIKE,
FLOOD, OR MATERIALS SHORTAGE OR OTHER EVENTS OVER WHICH THE PERMITTEE
HAS LITTLE OR NO CONTROL AND FOR WHICH THERE IS NO REASONABLY AVAILABLE
REMEDY. HOWEVER, IN NO CASE SHALL AN NPDES COMPLIANCE SCHEDULE BE
MODIFIED TO EXTEND BEYOND AN APPLICABLE CWA STATUTORY DEADLINE. SEE
ALSO SECTION 122.17(C) (MINOR MODIFICATION) AND PARAGRAPH (A)(5)(XI) OF
THIS SECTION (NPDES INNOVATIVE TECHNOLOGY).
(5) FOR NPDES ONLY, THE DIRECTOR MAY MODIFY A PERMIT:
(I) WHEN THE PERMITTEE HAS FILED A REQUEST FOR A VARIANCE UNDER CWA
SECTIONS 301(C), 301(G), 301(H), 301(I), 301(K), OR 316(A), OR FOR
"FUNDAMENTALLY DIFFERENT FACTORS" WITHIN THE TIME SPECIFIED IN SECTION
122.53, AND THE DIRECTOR PROCESSES THE REQUEST UNDER THE APPLICABLE
PROVISIONS OF SECTIONS 124.61, 124.62, AND 124.64.
(II) WHEN REQUIRED TO INCORPORATE AN APPLICABLE 307(A) TOXIC EFFLUENT
STANDARD OR PROHIBITION (SEE SECTION 122.62(B)).
(III) WHEN REQUIRED BY THE "REOPENER" CONDITIONS IN A PERMIT, WHICH
ARE ESTABLISHED INTHE PERMIT UNDER SECTION 122.62(B) (FOR CWA TOXIC
EFFLUENT LIMITATIONS) OR 40 CFR SECTION 403.10(E) (PRETREATMENT
PROGRAM).
(IV) UPON REQUEST OF A PERMITTEE WHO QUALIFIES FOR EFFLUENT
LIMITATIONS ON A NET BASIS UNDER SECTION 122.63(H).
(V) WHEN A DISCHARGER IS NO LONGER ELIGIBLE FOR NET LIMITATIONS, AS
PROVIDED IN SECTION 122.63(H)(1)(II)(B).
(VI) AS NECESSARY UNDER 40 CFR SECTION 403.8(E) (COMPLIANCE SCHEDULE
FOR DEVELOPMENT OF PRETREATMENT PROGRAM).
(VII) UPON FAILURE OF AN APPROVED STATE TO NOTIFY, AS REQUIRED BY
SECTION 402(B)(3), ANOTHER STATE WHOSE WASTERS MAY BE AFFECTED BY A
DISCHARGE FROM THE APPROVED STATE.
(VIII) WHEN THE LEVEL OF DISCHARGE OF ANY POLLUTANT WHICH IS NOT
LIMITED IN THE PERMIT EXCEEDS THE LEVEL WHICH CAN BE ACHIEVED BY THE
TECHNOLOGY-BASED TREATMENT REQUIREMENTS APPROPRIATE TO THE PERMITTEE
UNDER SECTION 125.3(C).
(IX) WHEN THE PERMITTEE BEGINS OR EXPECTS TO BEGIN TO USE OR
MANUFACTUFE AS AN INTERMEDIATE OR FINAL PRODUCT OR BYPRODUCT ANY TOXIC
POLLUTANT WHICH WAS NOT REPORTED IN THE PERMIT APPLICATION UNDER SECTION
122.53(D)(9).
(X) TO ESTABLISH A "NOTIFICATION LEVEL" AS PROVIDED IN SECTION
122.62(F).
(XI) TO MODIFY A SCHEDULE OF COMPLIANCE TO REFLECT THE TIME LOST
DURING CONSTRUCTION OF AN INNOVATIVE OR ALTERNATIVE FACILITY, IN THE
CASE OF A POTW WHICH HAS RECEIVED A GRANT UNDER SECTION 202(A)(3) OF CWA
FOR 100% OF THE COSTS TO MODIFY OR REPLACE FACILITIES CONSTRUCTED WITH A
GRANT FRON INNOVATIVE AND ALTERNATIVE WASTEWATER TECHNOLOGY UNDER
SECTION 202(A)(2). IN NO CASE SHALL THE COMPLIANCE SCHEDULE BE MODIFIED
TO EXTENT BEYOND AN APPLICABLE CWA STATUTORY DEADLINE FOR COMPLIANCE.
(6) FOR 404 ONLY, THE DIRECTOR SHALL MODIFY A PERMIT TO REFLECT TOXIC
EFFLUENT STANDARDS OR PROHIBITIONS OR WATER QUALITY STANDARDS, UNDER THE
"REOPENER" CONDITION OF SECTION 123.97(G).
(B) CAUSES FOR MODIFICATION OR REVOCATION AND REISSUANCE. THE
FOLLOWING ARE CAUSES TO MODIFY OR, ALTERNATIVELY, REVOKE AND REISSUE A
PERMIT:
(1) CASE EXISTS FOR TERMINATION UNDER SECTION 122.16, AND THE
DIRECTOR DETERMINES THATMODIFICATION OR REVOCATION AND REISSUANCE IS
APPROPRIATE.
(2) THE DIRECTOR HAS RECIEVED NOTIFICATION (AS REQUIRED IN THE
PERMIT, SEE SECTION 122.17(1)(3)) OF A PROPOSED TRANSFER OF THE PERMIT.
A PERMIT ALSY MAY BE MODIFIED TO REFLECT A TRANSFER AFTER THE EFFECTIVE
DATE OF AN AUTOMATIC TRANSFER (SECTION 122.14 (B)) BUT WILL NOT BE
REVOKED AND REISSUED AFTER THE EFFECTIVE DATE OF THE TRANSFER EXCEPT
UPON THE REQUEST OF THE NEW PERMITTEE.
(C) FACILITY SITING. FOR RCRA AND UIC, SUITABILITY OF THE FACILITY
LOCATION WILL NOT BE CONSIDERED AT THE TIME OF PERMIT MODIFICATION OR
REVOCATION AND REISSUANCE UNLESS NEW INFORMATION OR STANDARDS INDICATE
THAT A THREAT TO HUMAN HEALTH OR THE ENVIRONMENT EXISTS WHICH WAS
UNKNOWN AT THE TIME OF PERMIT ISSUANCE.
(APPLICABLE TO STATE PROGRAMS, SEE SECTION 122.7.)
(A) THE FOLLOWING ARE CAUSES FOR TERMINATING A PERMIT DURING ITS
TERM, OR FOR DENYING A PERMIT RENEWAL APPLICATION:
(1) NONCOMPLIANCE BY THE PERMITTEE WHTH ANY CONDITION OF THE PERMIT;
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FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 142 OF 225
COSTLE DM ADMINISTRATOR
EPA
113641
REGULATIONS
(2) THE PERMITTEE'S FAILURE IN THE APPLICATION OR DURING THE PERMIT
ISSUANCE PROCESS TO DISCLOSE FULLY ALL RELEVANT FACTS, OR THE
PERMITTEE'S MISREPRESENTATION OF ANY RELEVANT FACTS AT ANY TIME; OR
(3) A DETERMINATION THAT THE PERMITTED ACTIVITY ENDANGERS HUMAN
HEALTH OR THE ENVIRONMENT AND CAN ONLY BE REGULATED TO ACCEPTABLE LEVELS
BY PERMIT MODIFICATIONOR TERMINATION.
(4) FOR NPDES AND 404 ONLY, PERMITS MAY BE MODIFIED OR TERMINATED
WHEN THERE IS A CHANGE IN ANY CONDITION THAT REQUIRES EITHER A TEMPORARY
OR A PERMANENT REDUCTION OR ELIMINATION OF ANY DISCHARGE CONTROLLED BY
THE PERMIT (FOR EXAMPLE, PLANT CLOSURE OR TERMINATION OF DISCHARGE BY
CONNECTION TO A POTW).
(B) THE DIRECTOR SHALL FOLLOW THE APPLICABLE PROCEDURES IN PART 124
OR STATE PROCEDURES IN TERMINATING ANY RCRA, UIC, NPDES, OR 404 PERMIT
UNDER THIS SECTION.
UPON THE CONSENT OF THE PERMITTEE, THE DIRECTOR MAY MODIFY A PERMIT
TO MAKE THE CORRECTIONS OR ALLOWANCES FOR CHANGES IN THE PERMITTED
ACTIVITY LISTED IN THIS SECTION, WITHOUT FOLLOWING THE PROCEDURES OF
PART 124. ANY PERMIT MODIFICATION NOT PROCESSED AS A MINOR MODIFICATION
UNDER THIS SECTION MUST BE MADE FOR CAUSE AND WITH PART 124 DRAFT PERMIT
AND PUBLIC NOTICE AS REQUIRED IN SECTION 122.15. MINOR MODIFICATIONS
MAY ONLY:
(A) CORRECT TYPOGRAPHICAL ERRORS;
(B) REQUIRE MORE FREQUENT MONITORING OR REPORTING BY THE PERMITTEE;
(C) CHANGE AN INTERIM COMPLIANCE DATE IN A SCHEDULE OF COMPLIANCE,
PROVIDED THE NEW DATE IS NOT MORE THAN 120 DAYS AFTER THE DATE SPECIFIED
INTHE EXISTING PERMIT AND DOES NOT INTERFERE WITH ATTAINMENT OF THE
FINAL COMPLIANCE DATE REQUIREMENT; OR
(D) ALLOW FOR A CHANGE IN OWNERSHIP OR OPERATIONAL CONTROL OF A
FACILITY WHERE THE DIRECTOR DETERMINES THAT NO OTHER CHANGE IN THE
PERMIT IS NECESSARY, PROVIDED THAT A WRITTEN AGREEMENT CONTAINING A
SPECIFIC DATE FOR TRANSFER OF PERMIT RESPONSIBILITY, COVERAGE, AND
LIABILITY BETWEEN THE CURRENT AND NEW PERMITTEES HAS BEENSUBMITTED TO
THE DIRECTOR.
(3) FOR RCRA ONLY, CHANGE THE LISTS OF FACILITY EMERGENCY
COORDINATORS OR EQUIPMENT IN THE PERMIT'S CONTINGENCY PLAN.
(F) FOR UIC ONLY,
(1) CHANGE QUANTITIES OR TYPES OF FLUIDS INJECTED WHICH ARE WITHIN
THE CAPACITY OF THE FACILITY AS PERMITTED AND, IN THE JUDSMENT OF THE
DIRECTOR, AFTER REVIEWING INFORMATION REQUIRED UNDER SECTIONS 146.16,
146.26 AND 146.36, WOULD NOT INTERFERE WITH THE OPERATION OF THE
FACILITY OR ITS ABILITY TO MEET CONDITIONS PRESCRIBED INTHE PERMIT, AND
WOULD NOT CHANGE ITS CLASSIFICATION.
(2) CHANGE CONSTRUCTION REQUIREMENTS APPROVED BY THE DIRECTOR
PURSUANT TO SECTION 122.42(A) (ESTABLISHING UIC PERMIT CONDITIONS),
PROVIDED THAT ANY SUCH ALTERATION SHALL COMPLY WITH THE REQUIREMENTS OF
THIS PART AND PART 146.
(G) FOR NPDES ONLY.
(1) CHANGE THE CONSTRUCTION SCHEDULE FOR A DISCHARGER WHICH IS A NEW
SOURCE. NO SUCH CHANGE SHALL AFFECT A DISCHARGER'S OBLICATION TO HAVE
ALL POLLUTION CONTROL EQUIPMENT INSTALLED AND IN OPERATION PRIOR TO
DISCHARGE UNDER SECTION 122.6.
(2) DELETE A POINT SOURCE OUTFALL WHEN THE DISCHARGE FROM THAT
OUTFALL IS TERMINATED AND DOES NOT RESULT IN DISCHARGE OF POLLUTANTS
FROM OTHER OUTFALLS EXCEPT IN ACCORDANCE WITH PERMIT LIMITS.
(H) FOR 404 ONLY, EXTEND THE TERM OF A STATE SECTION 404 PERMIT, SO
LONG AS THE MODIFICATION DOES NOT EXTEND THE TERM OF THE PERMIT BEYOND 5
YEARS FROM ITS ORIGINAL EFFECTIVE DATE.
(APPLICABLE TO STATE PROGRAMS, SEE SECTION 123.7.)
THE DIRECTOR SHALL PREPARE QUARTERLY AND ANNUAL REPORTS AS DETAILED
BELOW. WHEN THE STATE IS THE PERMIT-ISSUING AUTHORITY, THE STATE
DIRECTOR SHALL SUBMIT ANY REPORTS REQUIRED UNDER THIS SECTION TO THE
REGIONAL ADMINISTRAGOR. WHEN EPA IS THE PERMIT-ISSUING AUTHORITY, THE
REGIONAL ADMINISTRATOR SHALL SUBMIT ANY REPORT REQUIRED UNDER THIS
SECTION TO EPA HEADQUARTERS. FOR PURPOSES OF THIS SECTION ONLY, RCRA
PERMITTEES SHALL INCLUDE RCRA INTERIM STATUS FACILITIES, WHEN
APPROPRIATE.
(A) QUARTERLY REPORTS FOR RCRA, UIC, AND NPDES. THE DIRECTOR SHALL
SUBMIT QUARTERLY NARRATIVE REPORTS FOR MAJOR FACILITIES AS FOLLOWS:
(1) FORMAT. THE REPORT SHALL USE THE FOLLOWING FORMAT:
(I) PROVIDE SEPARATE LISTS FOR RCRA, UIC, AND NPDES PERMITTEES; THE
NPDES PERMITTEES SHALL BE FURTHER SUBCATEGORIZED AS NON-POTWS, POTWS,
AND FEDERAL PERMITTEES;
(II) FOR FACILITIES OR ACTIVITIES WITH PERMITS UNDER MORE THAN ONE
PROGRAM, PROVIDE AN ADDITIONAL LIST COMBINING INFORMATION ON
NONCOMPLIANCE FOR EACH SUCH FACILITY;
(III) ALPHABETIZE EACH LIST BY PERMITTEE NAME. WHEN TWO OR MORE
PERMITTEES HAVE THE SAME NAME, THE LOWEST PERMIT NUMBER SHALL BE ENTERED
FIRST.
(IV) FOR EACH ENTRY ON A LIST, INCLUDE THE FOLLOWING INFORMATION IN
THE FOLLOWING ORDER:
(A) NAME, LOCATION, AND PERMIT NUMBER OF THE NONCOMPLYING PERMITTEE.
(B) A BRIEF DESCRIPTION AND DATE OF EACH INSTANCE OF NONCOMPLIANCE
FOR THAT PERMITTEE. INSTANCES OF NONCOMPLIANCE MAY INCLUDE ONE OR MORE
OF THE KINDS SET FORTH IN PARAGRAPH (A)(2) OF THIS SECTION. WHEN A
PERMITTEE HAS NONCOMPLIANCE OF MORE THAN ONE KIND UNDER A SINGLE
PROGRAM, COMBINE THE INFORMATION INTO A SINGLE ENTRY FOR EACH SUCH
PERMITTEE.
(C) THE DATE(S) AND A BRIEF DESCRIPTION OF THE ACTION(S) TAKEN BY THE
DIRECTOR TO ENSURE COMPLIANCE.
(D) STATUS OF THE INSTANCE(S) OF NONCOMPLIANCE WITH THE DATE OF THE
REVIEW OF THE STATUS OR THE DATE OF RESOLUTION.
(E) ANY DETAILS WHICH TEND TO EXPLAIN OR MITIGATE THE INSTANCE(S) OF
NONCOMPLIANCE.
(2) INSTANCES OF NONCOMPLIANCE TO BE REPORTED. ANY INSTANCES OF
NONCOMPLIANCE WITHIN THE FOLLOWING CATEGORIES SHALL BE REPORTED AS
RESOLVED. ONCE NONCOMPLIANCE IS REPORTED AS RESOLVED IT NEED NOT APPEAR
IN SUBSEQUENT REPORTS.
(I) FAILURE TO COMPLETE CONSTRUCTION ELEMENTS. WHEN THE PERMITTEE
HAS FAILED TO COMPLETE, BY THE DATE SPECIFIED IN THE PERMIT, AN ELEMENT
OF A COMPLIANCE SCHEDULE INVOLVING EITHER PLANNING FOR CONSTRUCTION (FOR
EXAMPLE, AWARD OF A CONTRACT, PRELIMINARY PLANS), OR A CONSTRUCTION STEP
(FOR EXAMPLE, BEGIN CONSTRUCTION, ATTAIN OPERATION LEVEL); AND THE
PERMITTEE HAS NOT RETURNED TO COMPLIANCE BY ACCOMPLISHING THE REQUIRED
ELEMENT OF THE SCHEDULE WITHIN 30 DAYS FROM THE DATE A COMPLIANCE
SCHEDULE REPORT IS DUE UNDER THE PERMIT.
(II) MODIFICATIONS TO SCHEDULES OF COMPLIANCE. WHEN A SCHEDULE OF
COMPLIANCE IN THE PERMIT HAS BEEN MODIFIED UNDER SECTION 122.15 OR
122.17 BECAUSE OF THE PERMITTEE'S NONCOMPLIANCE.
(III) FAILURE TO COMPLETE OR PROVIDE COMPLIANCE SCHEDULE OR
MONITORING REPORTS. WHEN THE PERMITTEE HAS FAILED TO COMPLETE OR
PROVIDE A REPORT REQUIRED IN A PERMIT COMPLIANCE SCHEDULE (FOR EXAMPLE,
PROGRESS REPORT OR NOTICE OF NONCOMPLIANCE OR COMPLIANCE) OR A
MONITORING REPORT; AND THE PERMITTEE HAS NOT SUBMITTED THE COMPLETE
REPORT WITHIN 30 DAYS FROM THE DATE IT IS DUE UNDER THE PERMIT FOR
COMPLIANCE SCHEDULES, OR FROM THE DATE SPECIFIED IN THE PERMIT FOR
MONITORING REPORTS.
(IV) DEFICIENT REPORTS. WHEN THE REQUIRED REPORTS PROVIDED BY THE
PERMITTEE ARE SO DEFICIENT AS TO CAUSE MISUNDERSTANDINGS BY THE DIRECTOR
AND THUS IMPEDE THE REVIEW OF THE STATUS OF COMPLIANCE.
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EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
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COSTLE DM ADMINISTRATOR
EPA
113642
REGULATIONS
(V) NONCOMPLIANCE WITH OTHER PERMIT REQUIREMENTS. NONCOMPLIANCE
SHALL BE REPORTED IN THE FOLLOWING CIRCUMSTANCES:
(A) WHENEVER THE PERMITTEE HAS VIOLATED A PERMIT REQUIREMENT (OTHER
THAN REPORTED UNDER PARAGRAPHS (A)(2) (I) OR (II) OF THIS SECTION),
ANDHAS NOT RETURNED TO COMPLIANCE WITH 45 DAYS FROM THE DATE REPORTING
OF NONCOMPLIANCE WAS DUE UNDER THE PERMIT; OR
(B) WHEN THE DIRECTOR DETERMINES THAT A PATTERN OF NONCOMPLIANCE
EXISTS FOR A MAJOR FACILITY PERMITTEE OVER THE MOST RECENT FOUR
CONSECUTIVE REPORTING PERIODS. (FOR NPDES ONLY, THIS PATTERN OF
NONCOMPLIANCE IS BASED ON VIOLATIONS OF MONTHLY AVERAGES AND EXCLUDES
PARAMETERS WHERE THERE IS CONTINUOUS MONITORING.) THIS PATTERN INCLUDES
ANY VIOLATION OF THE SAME REQUIREMENT IN TWO CONSECUTIVE REPORTING
PERIODS, AND ANY VIOLATION OF ONE OR MORE REQUIREMENTS IN EACH OF FOUR
CONSECUTIVE REPORTING PERIODS; OR
(C) WHEN THE DIRECTOR DETERMINES SIGNIFICANT PERMIT NONCOMPLIANCE OR
OTHER SIGNIFICANT EVENT HAS OCCURRED, SUCH AS A DISCHARGE OF A TOXIC OR
HAZARDOUS SUBSTANCE BY AN NPDES FACILITY, A FIRE OR EXPLOSION AT AN RCRA
FACILITY, OR MIGRATION OF FLUIDS INTO A USDW.
(VI) ALL OTHER. STATISTICAL INFORMATION SHALL BE REPORTED QUARTERLY
ON ALL OTHER INSTANCES OF NONCOMPLIANCE BY MAJOR FACILITIES WITH PERMIT
REQUIREMENTS NOT OTHERWISE REPORTED UNDER PARAGRAPH (A) OF THIS SECTION.
(3) FOR RCRA ONLY, THE DIRECTOR SHALL SUBMIT, IN A MANNER AND FORM
PRESCRIBED BY THE ADMINISTRATOR, QUARTERLY REPORTS CONCERNING
NONCOMPLIANCE BY TRANSPORTERS (FOR EXAMPLE, RECORDKEEPING REQUIREMENTS),
AND BY GENERATORS THAT SEND THEIR WASTES TO OFFSITE TREATMENT, STORAGE,
OR DISPOSAL FACILITIES.
(B) QUARTERLY REPORTS FOR STATE 404 PROGRAMS. THE DIRECTOR SHALL
SUBMIT NONCOMPLIANCE REPORTS FOR SECTION 404 DISCHARGES SPECIFIED UNDER
SECTION 123.6(F)(1)(I) (A)-(E) CONTAINING THE FOLLOWING INFORMATION:
(1) NAME, LOCATION, AND PERMIT NUMBER OF EACH NONCOMPLYING PERMITTEE;
(2) A BRIEF DESCRIPTION AND DATE OF EACH INSTANCE OF NONCOMPLIANCE,
WHICH SHOULD INCLUDE THE FOLLOWING:
(I) ANY UNAUTHORIZED DISCHARGES OF DREDGED OR FILL MATERIAL SUBJECT
TO THE STATE'S JURISDICTION OR ANY NONCOMPLIANCE WITH PERMIT CONDITIONS;
AND
(II) A DESCRIPTION OF INVESTIGATIONS CONDUCTED AND OF ANY ENFORCEMENT
ACTIONS TAKEN OR CONTEMPLATED.
(C) ANNUAL REPORTS FOR RCRA, UIC, AND NPDES.
(1) ANNUAL NONCOMPLIANCE REPORT. STATISTICAL REPORTS SHALL BE
SUBMITTED BY THE DIRECTOR ON NONMAJOR RCRA, UIC, AND NPDES PERMITTEES
INDICATING THE TOTAL NUMBER REVIEWED, THE NUMBER OF NONCOMPLYING
NONMAJOR PERMITTEES, THE NUMBER OF ENFORCEMENT ACTIONS, AND NUMBEROF
PERMIT MODIFICATIONS EXTENDING COMPLIANCE DEADLINES. THE STATISTICAL
INFORMATION SHALL BE ORGANIZED TO FOLLOW THE TYPES OF NONCOMPLIANCE
LISTED IN PARAGRAPH (A) OF THIS SECTION.
(2) FOR NPDES ONLY, A SEPARATE LIST OF NONMAJOR DISCHARGES WHICH ARE
ONE OR MORE YEARS BEHIND IN CONSTRUCTION PHASES OF THE COMPLIANCE
SCHEDULE SHALL ALSO BE SUBMITTED IN ALPHABETICAL ORDER BY NAME AND
PERMIT NUMBER.
(3) FOR RCRA ONLY, IN ADDITION TO THE ANNUAL NONCOMPLIANCE REPORT,
THE DIRECTOR SHALL PREPARE A "PROGRAM REPORT" WHICH CONTAINS INFORMATION
(IN A MANNER AND FORM PRESCRIBED BY THE ADMINISTRATOR) ON GENERATORS AND
TRANSPORTERS; THE PERMIT STATUS OF REGULATED FACILITIES; AND SUMMARY
INFORMATION ON THE QUANTITIES AND TYPES OF HAZARDOUS WASTES GENERATED,
TRANSPORTED STORED, TREATED, AND DISPOSED DURING THE PRECEDING YEAR.
THIS SUMMARY INFORMATION SHALL BE REPORTED ACCORDING TO EPA
CHARACTERISTICS AND LISTS OF HAZARDOUS WASTES AT 40 CFR PART 261.
(4) FOR STATE-ADMINISTERED UIC PROGRAMS ONLY, IN ADDITION TO THE
ANNUAL NONCOMPLIANCE REPORT, THE STATE DIRECTOR SHALL:
(I) SUBMIT EACH YEAR A PROGRAM REPORT TO THE ADMINISTRATOR (IN A
MANNERAND FORM PRESCRIBED BY THE ADMINISTRATOR) CONSISTING OF:
(A) A DETAILED DESCRIPTION OF THE STATE'S IMPLEMENTATION OF ITS
PROGRAM;
(B) SUGGESTED CHANGES IF ANY TO THE PROGRAM DESCRIPTION (SEE SECTION
123.4(F)) WHICH ARE NECESSARY TO MORE ACCURATELY REFLECT THE STATE'S
PROGRESS IN ISSUING PERMITS;
(C) AN UPDATED INVENTORY OF ACTIVE UNDERGROUND INJECTION OPERATIONS
IN THE STATE.
(II) IN ADDITION TO COMPLING WITH THE REQUIREMENTS OF PARAGRAPH
(C)(4) (I) OF THIS SECTION THE STATE DIRECTOR SHALL PROVIDE THE
ADMINISTRATOR WITHIN 3 MONTHS OF THE COMPLETION OF THE SECOND FULL YEAR
OF STATE OPERATION OF THE UIC PROGRAM A SUPPLEMENTAL REPORT CONTAINING
THE INFORMATION REQUIRED IN 40 CFR PART 146 ON CORRECTIVE ACTIONS TAKEN
BY OPERATORS OF NEW CLASS II WELLS BASED UPON THESE REGULATIONS.
(D) ANNUAL REPORTS FOR STATE 404 PROGRAMS. THE STATE DIRECTOR SHALL
SUBMIT TO THE REGIONAL ADMINISTRATOR AN ANNUAL REPORT ASSESSING THE
CUMULATIVE IMPACTS OF THE STATE'S PERMIT PROGRAM ON THE INTEGRITY OF
TSTATE REGULATED WATERS. THIS REPORT SHALL INCLUDE:
(1) THE NUMBER AND NATURE OF INDIVIDUAL PERMITS ISSUED BY THE STATE
DURING THE YEAR. THIS SHOULD INCLUDE THE LOCATIONS AND TYPES OF WATER
BODIES WHERE PERMITTED ACTIVITIES ARE SITED (FOR EXAMPLE, WETLANDS,
RIVERS, LAKES, AND OTHER CATEGORIES WHICH THE DIRECTOR AND REGIONAL
ADMINISTRATOR MAY ESTABLISH);
(2) THE NUMBEROF ACRES OF EACH OF THE CATEGORIES OF WATERS IN
PARAGRAPH (D)(1) OF THIS SECTION WHICH WERE FILLED OR WHICH RECEIVED ANY
DISCHARGE OR DREDGED MATERIAL DURING THE YEAR (EITHER BY AUTHORIZED OR
KNOWN UNAUTHORIZED ACTIVITIES);
(3) THE NUMBERAND NATURE OF PERMIT APPLICATIONS DENIED; AND PERMITS
MODIFIED, REVOKED AND REISSUED, OR TERMINATED DURING THE YEAR.
(4) THE NUMBER AND NATURE OF PERMITS ISSUED UNDER EMERGENCY
CONDITIONS, AS PROVIDED IN SECTION 123.96;
(5) THE APPROXIMATE NUMBER OF PERSONS IN THE STATE DISCHARGING
DREDGED OR FILL MATERIAL UNDER GENERAL PERMITS AND AN ESTIMATE OF THE
CUMULATIVE IMPACTS OF THESE ACTIVITIES.
(E) SCHEDULE.
(1) FOR ALL QUARTERLY REPORTS. ON THE LAST WORKING DAY OF MAY,
AUGUST, NOVEMBER, AND FEBRUARY, THE STATE DIRECTOR SHALL SUBMIT TO THE
REGIONAL ADMINISTRATOR INFORMATION CONCERNING NONCOMPLIANCE WITH RCRA,
UIC, NPDES, AND STATE 404 PERMIT REQUIREMENTS BY MAJOR DISCHARGERS (OR
FOR 404, OTHER DISCHARGERS SPECIFIED UNDER SECTION
123.6(F)(1)(I)(A)-(E)) IN THE STATE IN ACCORDANCE WITH THE FOLLOWING
SCHEDULE. THE REGIONAL ADMINISTRATOR SHALL PREPARE AND SUBMIT
INFORMATION FOR EPA-ISSUED PERMITS TO EPA HEADQUATERS IN ACCORDANCE WITH
THE SAME SCHEDULE:
QUARTERS COVERED BY REPORTS ON NONCOMPLIANCE BY MAJOR DISCHARGERS
FIGURE OMITTED
(2) FOR ALL ANNUAL REPORTS. THE PERIOD FOR ANNUAL REPORTS SHALL BE
FOR THE CALENDAR YEAR ENDING DECEMBER 31, WITH REPORTS COMPLETED AND
AVAILABLE TO THE PUBLIC NO MORE THAN 60 DAYS LATER.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 144 OF 225
COSTLE DM ADMINISTRATOR
EPA
113643
REGULATIONS
(A) IN ACCORDANCE WITH 40 CFR PART 2, ANY INFORMATION SUBMITTED TO
EPA PURSUANT TO THESE REGULATIONS MAY BE CLAIMED AS CONFIDENTIAL BY THE
SUBMITTER. ANY SUCH CLAIM MUST BE ASSERTED AT THE TIME OF SUBMISSION IN
THE MANNER PRESCRIBED ON THE APPLICATIN FORM OR INSTRUCTIONS, OR, IN THE
CASE OF OTHER SUBMISSIONS, BY STAMPING THE WORDS "CONFIDENTIAL BUSINESS
INFORMATION" ON EACH PAGE CONTAINING SUCH INFORMATION. IF NO CLAIM IS
MADE AT THE TIME OF SUBMISSION, EPA MAY MAKE THE INFORMATION AVAILABLE
TO THE PUBLIC WITHOUT FURTHER NOTICE. IF A CLAIM IS ASSERTED, THE
INFORMATION WILL BE TREATED IN ACCORDANCE WITH THE PROCEDURES IN 40 CFR
PART 2 (PUBLIC INFORMATION).
(B) (APPLICABLE TO STATE PROGRAMS, SEE SECTION 123.7.) CLAIMS OF
CONFIDENTIALITY FOR THE FOLLOWING INFORMATION WILL BE DENIED:
(1) THE NAME AND ADDRESS OF ANY PERMIT APPLICANT OR PERMITTEE;
(2) FOR UIC PERMITS, INFORMATION WHICH DEALS WITH THE EXISTENCE,
ABSENCE, OR LEVEL OF CONTAMINANTS IN DRINKING WATER;
(3) FOR NPDES PERMITS, PERMIT APPLICATIONS AND PERMITS; AND
(4) FOR NPDES AND 404 PERMITS, EFFLUENT DATA.
(C) (APPLICABLE TO STATE PROGRAMS, SEE SECTION 123.7.) FOR NPDES
ONLY, INFORMATION REQUIRED BY NPDES APPLICATION FORMS PROVIDED BY THE
DIRECTOR UNDER SECTIONS 122.4 AND 122.53 MAY NOT BE CLAIMED
CONFIDENTIAL. THIS INCLUDES INFORMATION SUBMITTED ON THE FORMS
THEMSELVES AND ANY ATTACHMENTS USED TO SUPPLY INFORMATION REQUIRED BY
THE FORMS.
(D) (APPLICABLE TO STATE PROGRAMS, SEE SECTION 122.7.) FOR RCRA ONLY,
(1) CLAIMS OR CONFIDENTIALITY FOR PERMIT APPLICATION INFORMATION MUST
BE SUBSTANTIATED AT THE TIME THE APPLICATION IS SUBMITTED AND IN THE
MANNER PRESCRIBED IN THE APPLICATION INSTRUCTIONS.
(2) IF A SUBMITTER DOES NOT PROVIDE SUBSTANTIATION, THE DIRECTOR WILL
NOTIFY IT BE CERTIFIED MAIL OF THE REQUIREMENT TO DO SO. IF THE
DIRECTOR DOES NOT RECEIVE THE SUBSTANTIATION WITHIN 10 DAYS AFTER THE
SUBMITTER RECEIVES THE NOTICE, THE DIRECTOR SHALL PLACE THE
UNSUBSTANTIATED INFORMATION IN THE PUBLIC FILE.
(A) CONTENT OF SUBPART B. THE REGULATIONS IN THIS SUBPART SET FORTH
THE SPECIFIC REQUIREMENTS FOR THE RCRA PERMIT PROGRAM. THEY APPLY TO
EPA, AND TO APPROVED STATES TO THE EXTENT SET FORTH IN PART 123.
SECTIONS OF THIS SUBPART WHICH ARE APPLICABLE TO STATES ARE INDICATED AT
THE SECTION HEADINGS AS FOLLOWS: (APPLICABLE TO STATE RCRA PROGRAMS,
SEE SECTION 123.7). THE REGULATIONS IN THIS SUBPART SUPPLEMENT THE
REQUIREMENTS IN PART 122, SUBPART A, WHICH CONTAINS REQUIREMENTS FOR ALL
PROGRAMS.
(B) AUTHORITY FOR THIS SUBPART AND OTHER RCRA SUBTITLE C REGULATIONS.
(1) SECTION 3001 OF RCRA REQUIRES EPA (I) TO ESTABLISH CRITERIA FOR
IDENTIFYING THE CHARACTERISTIDS OF HAZARDOUS WASTE AND FOR LISTING
HAZARDOUS WASTE, AND (II) USING THOSE CRITERIA TO IDENTIFY THE
CHARACTERISTICS OF HAZARDOUS WASTE AND LISTPARTICULAR WASTES CONSIDERED
TO BE HAZARDOUS
(2) SECTION 3002 OF RCRA REQUIRES EPA TO ESTABLISH STANDARDS
APPLICABLE TO GENERATORS OF HAZARDOUS WASTE. SECTION 3002 ALSO REQUIRES
ESTABLISHMENT OF A MANIFEST SYSTEM TO ASSURE THAT HAZARDOUS WASTE
WHICHIS TRANSPORTED OFF-SITE GOES TO A PERMITTED TREATMENT, STORAGE, OR
DISPOSAL FACILITY.
(3) SECTION 3003 OF RCRA REQUIRES EPA TO ESTABLISH STANDARDS
APPLICABLE TO TRANSPORTERS OF HAZARDOUS WASTE.
(4) SECTION 3004 OF RCRA REQUIRES EPA TO ESTABLISH STANDARDS FOR THE
LOCATION, DESIGN, CONSTRUCTION, MONITORING AND OPERATING OF HAZARDOUS
WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES.
(5) SECTION 3005 OF RCRA REQUIRES EPA TO PUBLISH REGULATIONS
REQUIRING EACH PERSON OWNING OR OPERATING A HAZARDOUS WASTE TREATMENT,
STORAGE, OR DISPOSAL FACILITY TO OBTAIN A RCRA PERMIT.
(6) SECTION 3006 OF RCRA REQUIRES EPA TO PUBLISH GUIDELINES TO ASSIST
STATES IN DEVELOPING HAZARDOUS WASTE MANAGEMENT PROGRAMS.
(7) SECTION 3010 OF RCRA REQUIRES ANY PERSON WHO GENERATES OR
TRANSPORTS HAZARDOUS WATE, OR WHO OWNS OR OPERATES A FACILITY FOR THE
TREATMENT, STORAGE, OR DISPOSAL OF HAZARDOUS WASTE, TO NOTIFY EPA (OR
STATES HAVING APPROVED HAZARDOUS WASTE PROGRAMS UNDER SECTION 3006 OF
RCRA) OF SUCH ACTIVITY WITHIN 90 DAYS OF THE PROMULGATION OR REVISION OF
REGULATIONS UNDER SECTION 3001 OF RCRA. SECTION 3010 PROVIDES THAT NO
HAZARDOUS WASTE SUBJECT TO REGULATIONS UNDER SUBTITLE C OF RCRA MAY BE
TRANSPORTED, TREATED, STORED, OR DISPOSED OF UNLESS THE REQUIRED
NOTIFICATION HAS BEEN GIVEN.
(8) THE FOLLOWING CHART INDICATES WHERE THE REGULATIONS FOR SECTIONS
3001 THROUGH 3006 AND THE PUBLIC NOTICE FOR 3010 APPEAR IN THE FEDERAL
REGISTER.
FIGURE OMITTED
(C) OVERVIEW OF THE RCRA PERMIT PROGRAM. NOT LATER THAN 90 DAYS
AFTER THE PROMULGATION OR REVISION OF REGULATIONS IN 40 CFR PART 261
(IDENTIFYING AND LISTING HAZARDOUS WASTES) ALL GENERATORS AND
TRANSPORTERS OF HAZARDOUS WASTE, AND ALL OWNERS OR OPERATORS OF
HAZARDOUS WASTE TREATMENT, STORAGE, OR DISPOSAL FACILITIES MUST FILE A
NOTIFICATION OF THAT ACTIVITY UNDER SECTION 3010. SIX MONTHS AFTER THE
INITIAL PROMULGATION OF THEPART 261 REGULATIONS, TREATMENT, STORAGE, OR
DISPOSAL OF HAZARDOUS WASTE BY ANY PERSON WHO HAS NOT APPLIED FOR OR
RECEIVED A RCRA PERMIT IS PROHIBITED. A RCRA PERMIT APPLICATION
CONSISTS OF TWO PARTS, PART A (SEE SECTIN 122.24) AND PART B (SEE
SECTION 122.25). FOR "EXISTING HWM FACILITIES," THE REQUIREMENT TO
SUBMIT AN APPLICATION IS SATISFIED BY SUBMITTED ONLY PART A OF THE
PERMIT APPLICATION UNTIL THE DATE THE DIRECTOR SETS FOR SUBMITTING PART
B OF THE APPLICATION. (PART A CONSISTS OF FORMS 1 AND 3 OF THE
CONSOLIDATED PERMIT APPLICATION FORMS.) TIMELY SUBMISSION OF BOTH
NOTIFICATION UNDER SECTION 3010 AND PART A QUALIFIES OWNERS AND
OPERATORS OF EXISTING HWM FACILITIES FOR INTERIM STATUS ARE TREATED AS
HAVING BEEN ISSUED A PERMIT UNTIL EPA OR A STATE WITH INTERIM
AUTHORIZATION FOR PHASE II OR FINAL AUTHORIZATION UNDER PART 123 MAKES A
FINAL DETERMINATION ON THE PERMIT APPLICATION. FACILITY OWNERS AND
OPERATORS WITH INTERIM STATUS MUST COMPLY WITH INTERIM STATUS STANDARDS
SET FORTH AT 40 CFR PART 265 OR WITH THE EQUIVALENT PROVISIONS OF A
STATE PROGRAM WHICH HAS RECEIVED INTERIM OR FINAL AUTHORIZATION UNDER
PART 123.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 145 OF 225
COSTLE DM ADMINISTRATOR
EPA
113644
REGULATIONS
FACILITY OWNERS AND OPERATORS WITH INTERIM STATUS ARE NOT RELIEVED
FROM COMPLYING WITH OTHER STATE REQUIREMENTS. FOR EXISTING HWM
FACILITIES THE DIRECTOR SHALL SET A DATE, GIVING AT LEAST SIX MONTHS
NOTICE, FOR SUBMISSION OF PART B OF THE APPLICATION. THERE IS NO FORM
FOR PART B OF THE APPLICATION; RATHER, PART B MUST BE SUBMITTED IN
NARRATIVE FORM AND CONTAIN THE INFORMATION SET FORTH AT SECTION 122.25.
OWNERS OR OPERATORS OFNEW HWM FACILITIES MUST SUBMIT PART A AND PART B
OF THE PERMIT APPLICATION AT LEAST 180 DAYS BEFORE PHYSICAL CONSTRUCTION
IS EXPECTED TO COMMENCE.
(D) SCOPE OF THE RCRA PERMIT REQUIREMENT. RCRA REQUIRES A PERMIT FOR
THE "TREATMENT," "STORAGE," OR "DISPOSAL" OF ANY "HAZARDOUS WASTE" AS
IDENTIFIED OR LISTED IN 40 CFR PART 261. THE TERMS "TREATMENT,"
"STORAGE," "DISPOSAL," AND "HAZARDOUS WASTES" ARE DEFINED IN SECTION
122.3.
(1) SPECIFIC INCLUSIONS (APPLICABLE TO STATE RCRA PROGRAMS, SEE
SECTION 123.7). OWNERS AND OPERATORS OF CERTAIN FACILITIES REQUIRE RCRA
PERMITS AS WELL AS PERMITS UNDER OTHE ROGRAMS FOR CERTAIN ASPECTS OF THE
FACILITY OPERATION. RCRA PERMITS ARE REQUIRED FOR:
(I) INJECTION WELLS THAT DISPOSE OF HAZARDOUS WASTE, AND ASSOCIATED
SURFACE FACILITIES THAT TREAT, SOTRE, OR DISPOSE OF HAZARDOUS WASTE.
(SEE SECTION 122.30.) HOWEVER, THE OWNER AND OPERATOR WITH A UIC PERMIT
IN A STATE WITH AN APPROVED OR PROMULGATED UIC PROGRAM, WILL BE DEEMED
TO HAVE A RCRA PERMIT FOR THE INJECTION WELL ITSELF IF THEY COMPLY WITH
THE REQUIREMENTS OF SECTION 122.26(B) (PERMIT BY RULE FOR INJECTION
WELLS).
(II) TREATMENT, STORAGE, OR DISPOSAL OF HAZARDOUS WASTE AT FACILITIES
REQUIRING AN NPDES PERMIT. HOWEVER, THE OWNER AND OPERATOR OF A
PUBLICLY OWNED TREATMENT WORKS RECEIVING HAZARDOUS WASTE WILL BE DEEMED
TO HAVE A RCRA PERMIT FOR THAT WASTE IF THEY COMPLY WITH THE
REQUIREMENTS OF SECTION 122.26(C) (PERMIT BY RULE FOR POTWS).
(III) BARGES OR VESSELS THAT DISPOSE OF HAZARDOUS WASTE BY OCEAN
DISPOSAL AND ONSHORE HAZARDOUS WASTE TREATMENT OR STORAGE FACILITIES
ASSOCIATED WITH AN OCEAN DISPOSAL OPERATION. HOWEVER, THE OWNER AND
OPERATOR WILL BE DEEMED TO HAVE A RCRA PERMIT FOR OCEAN DISPOSAL FROM
THE BARGE OR VESSELITSELF IF THEY COMPLY WITH THE REQUIREMENTS OF
SECTION 122.26(A) (PERMIT BY RULE FOR OCEAN DISPOSAL BARGES AND
VESSELS).
(2) SPECIFIC EXCLUSIONS. THE FOLLOWING PERSONS ARE AMONG THOSE WHO
ARE NOT REQUIRED TO OBTAIN A RCRA PERMIT:
(I) GENERATORS WHO ACCUMULATE HAZARDOUS WASTE ON-SITE FOR
LESS THAN 90 DAYS, AS PROVIDED IN 40 CFR SECTION 262.34.
(II) FARMERS WHO DISPOSE OF HAZARDOUS WASTE PESTICIDES FROM THEIR OWN
USE AS PROVIDED IN 40 CFR SECTION 262.51.
(III) PERSONS WHO OWN OR OPERATE FACILITIES SOLELY FOR THE TREATMENT,
STORAGE, OR DISPOSAL OF HAZARDOUS WASTE EXCLUDED FROM REGULATIONS UNDER
THISPART BY 40 CFR SECTION 261.4 OR SECTION 261.5 (SMALL GENERATOR
EXEMPTION).
(IV) OWNERS OR OPERATORS OT TOTALLY ENCLOSED TREATMENT FACILITIES AS
DEFINED IN 40 CFR SECTION 260.10.
(V) OWNERS OR OPERATORS OF TOTALLY ENCLOSED TREATMENT FACILTIEIS AS
DEFINED IN 40 CFR SECTION 260.10.
(APPLICABLE TO STATE RCRA PROGRAMS, SEE SECTION 123.7.)
(A) EXISTING HWM FACILITIES. (1) NOT LATER THAN SIX MONTHS AFTER THE
FIRST PROMULGATION OF REGULATIONS IN 40 CFR PART 261 LISTING AND
IDENTIFYING HAZARDOUS WASTES, ALL OWNERS AND OPERATORS OF EXISTING
HAZARDOUS WASTE TREATMENT, STORAGE, OR DISPOSAL FACILITIES MUST SUBMIT
PART A OF THEIR PERMIT APPLICATION WITH THE REGIONAL ADMINISTRATOR.
(2) AT ANY TIME AFTER PROMULGATION OF PHASE II THE OWNER AND OPERATOR
OF AN EXISTING HWM FACILITY MAY BE REQUIRED TO SUBMIT PART B OF THEIR
PERMIT APPLICATION. THE STATE DIRECTOR MAY REQUIRE SUBMISSION OF PART B
(OR EQUIVALENT COMPLETION OF THE STATE RCRA APPLICATIONPROCESS) IF THE
STATE IN WHICH THE FACILITY IS LOCATED HAS RECEIVED INTERIM
AUTHORIZATION FOR PHASE II OR FINAL AUTHORIZATION; IF NOT, THE REGIONAL
ADMINISTRATOR MAY REQUIRE SUBMISSION OF PART B. ANY OWNER OR OPERATOR
SHALL BE ALLOWED AT LEAST SIX MONTHS FROM THE DATE OF REQUEST TO SUBMIT
PART B OF THE APPLICATION. ANY OWNER OR OPERATOR OF AN EXISTING HWM
FACILITY MAY VOLUNTARILY SUBMIT PART B OF THE APPLICATION AT ANY TIME.
(3) FAILURE TO FURNISH A REQUESTED PART B APPLICATION ON TIME, OR TO
FURNISH IN FULL THE INFORMATION REQUIRED BY THE PART B APPLICATION, IS
GROUNDS FOR TERMINATION OF INTERIM STATUS UNDER PART 124.
(B) NEW HWM FACILITIES. (1) NO PERSON SHALL BEGIN PHYSICAL
CONSTRUCTION ON A NEW HWM FACILITY WITHOUT HAVING SUBMITTED PART A AND
PART B OF ITS PERMIT APPLICATION AND RECEIVE A FINALLY EFFECTIVE RCRA
PERMIT.
(2) AN APPLICATION FOR A PERMIT FOR A NEW HWM FACILITY (INCLUDING
BOTH PART A AND PART B) MAY BE FILED ANY TIME AFTER PROMULGATION OF
PHASE II. THE APPLICATION SHALL BE FILED WITH THE REGIONAL
ADMINISTRATOR IF AT THE TIME OF APPLICATION THE STATE IN WHICH THE NEW
HWM FACILITY IS PROPOSED TO BE LOCATED HAS NOT RECEIVED INTERIM
AUTHORIZATION FOR PHASE II OR FINAL AUTHORIZATION; OTHERWISE IT SHALL
BE FILED WITH THE STATE DIRECTOR. ALL APPLICATIONS MUST BE SUBMITTED AT
LEAST 180 DAYS BEFORE PHYSICAL CONSTRUCTION IS EXPECTED TO COMMENCE.
(C) UPDATING PERMIT APPLICATIONS. (1) IF ANY OWNER OR OPERATOR OF A
HWM FACILITY HAS FILED PART A OF A PERMIT APPLICATION AND HAS NOT YET
FILED PART B, THE OWNER OR OPERATOR SHALL FILE AN AMENDED PART A
APPLICATION:
(I) WITH THE REGIONAL ADMINISTRATOR, IF THE FACILITY IS LOCATED IN A
STATE WHICH HAS NOT OBTAINED INTERIM AUTHORIZATION FOR PHASE II OR FINAL
AUTHORIZATION, WITHIN SIX MONTHS AFTER THE PROMULGATION OF REVISED
REGULATIONS UNDER PART 261 LISTING OR IDENTIFYING ADDITIONAL HAZARDOUS
WASTES, IF THE FACILITY IS TREATING, STORING, OR DISPOSING OF ANY OF
THOSE NEWLY LISTED OR IDENTIFIED WASTES.
(NOTE. -- EPA INTENDS TO PROMULGATE REGULATIONS IN JUNE OF 1980
LISTING OR DESIGNATING ADDITIONAL WASTES BEYOND THOSE LISTED OR
DESIGNATED IN ITS INITIAL PROMULGATION OF PART 261. THE WASTES TO BE
LISTED OR DESIGNATED IN JUNE ARE SET FORTH IN AN APPENDIX TO THE INITIAL
PROMULGATION. EPA ENCOURAGES FACILITIES APPLYING FOR INTERIM STATUS
BEFORE THAT SECOND SET OF WASTES IS ACTUALLY PUBLISHED TO LIST OR
DESIGNATE ANY OF THE WASTES IN THAT SET WHICH THEY ARE TREATING,
STORING, OR DISPOSING OF. THAT WILL AVOID THE NEED TO EXTENSIVELY
UPDATE THE PART A APPLICATION WHEN THE JUNE 1980 PROMULGATION OCCURS.)
(II) WITH THE STATE DIRECTOR, IF THE FACILITY IS LOCATED IN A STATE
WHICH HAS OBTAINED PHASE II INTERIM AUTHORIZATION OR FINAL
AUTHORIZATION, NO LATER THAN THE EFFECTIVE DATE OF REGULATORY PROVISIONS
LISTING OR DESIGNATING WASTES AS HAZARDOUS IN THAT STATE IN ADDITION TO
THOSE LISTED OR DESIGNATED UNDER THE PREVIOUSLY APPROVED STATE PROGRAM,
IF THE FACILITY IS TREATING, STORING, OR DISPOSING OF ANY OF THOSE NEWLY
LISTED OR DESIGNATED WASTES; OR
(III) AS NECESSARY TO COMPLY WITH PROVISIONS OF SECTION 122.23 FOR
CHANGES DURING INTERIM STATUS OR THE ANALOGOUS PROVISIONS OF A STATE
PROGRAM APPROVED FOR FINAL AUTHORIZATION OR INTERIM AUTHORIZATION FOR
PHASE II. REVISED PART A APPLICATIONS NECESSARY TO COMPLY WITH THE
PROVISIONS OF SECTION 122.23 SHALL BE FILED WITH THE REGIONAL
ADMINISTRATOR IF THE STATE IN WHICH THE FACILITY IN QUESTION IS LOCATED
DOES NOT HAVE PHASE II INTERIM AUTHORIZATION OR FINAL AUTHORIZATION;
OTHERWISE IT SHALL BE FILED WITH THE STATE DIRECTOR.
(2) THE OWNER OR OPERATOR OF A FACILITY WHO FAILS TO COMPLY WITH THE
UPDATING REQUIREMENTS OF PARAGRAPH (C)(1) OF THIS SECTION DOES NOT
RECEIVE INTERIM STATUS AS TO THE WASTES NOT COVERED BY DULY FILED PART A
APPLICATIONS.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 146 OF 225
COSTLE DM ADMINISTRATOR
EPA
113645
REGULATIONS
(D) REAPPLICATIONS. ANY HWM FACILITY WITH AN EFFECTIVE PERMIT SHALL
SUBMIT A NEW APPLICATION AT LEAST 180 DAYS BEFORE THE EXPIRATION DATE OF
THE EFFECTIVE PERMIT, UNLESS PERMISSION FOR A LATER DATE HAS BEEN
GRANTED BY THE DIRECTOR. (THE DIRECTOR SHALL NOT GRANT PERMISSION FOR
APPLICATIONS TO BE SUBMITTED LATER THAN THE EXPIRATION DATE OF THE
EXTING PERMIT.)
(A) QUALIFYING FOR INTERIM STATUS. ANY PERSON WHO OWNS OR OPERATES
AN "EXISTING HWM FACILITY" SHALL HAVE INTERIM STATUS AND SHALL BE
TREATED AS HAVING BEEN ISSUED A PERMIT TO THE EXTENT HE OR SHE HAS:
(1) NOTIFIED THE ADMINISTRATOR WITHIN 90 DAYS FROM THE PROMULGATION
OR REVISION OF PART 261 AS REQUIRED IN SECTION 3010 OF RCRA (THIS MAY BE
DONE BY COMPLETING EPA FORM 8700-12); AND
(2) COMPLIED WITH THE REQUIREMENTS OF SECTION 122.22(A) AND (C)
GOVERNING SUBMISSION OF PART A APPLICATIONS;
(3) WHEN EPA DETERMINES ON EXAMINATION OR REEXAMINATION OF A PART A
APPLICATION THAT IT FAILS TO MEET THE STANDARDS OF THESE REGULATIONS, IT
MAY NOTIFY THE OWNER OR OPERATOR THAT THE APPLICATION IS DEFICIENT AND
THAT THE OWNER OR OPERATOR IS THEREFORE NOT ENTITLED TO INTERIM STATUS.
THE OWNER OR OPERATOR WILL THEN BE SUBJECT TO EPA ENFORCEMENT FOR
OPERATING WITHOUT A PERMIT.
(B) COVERAGE. DURING THE INTERIM STATUS PERIOD THE FACILITY SHALL
NOT:
(1) TREAT, STORE, OR DISPOSE OF HAZARDOUS WASTE NOT SPECIFIED IN PART
A OF THE PERMIT APPLICATION;
(2) EMPLOY PROCESSES NOT SPECIFIED IN PART A OF THE PERMIT
APPLICATION MAY BE TREATED, STORED, OR DISPOSED OF AT A FACILITY IF THE
OWNER OR OPERATOR SUBMITS A REVISED PART A PERMIT APPLICATION PRIOR TO
SUCH A CHANGE;
(2) INCREASES IN THE DESIGN CAPACITY OF PROCESSES USED AT A FACILITY
MAY BE MADE IF THE OWNER OR OPERATOR SUBMITS A REVISED PART A PERMIT
APPLICATION PRIOR TO SUCH A CHANGE (ALONG WITH A JUSTIFICATION
EXPLAINING THE NEED FOR THE CHANGE) AND THE DIRECTOR APPROVES THE CHANGE
BECAUSE OF A LACK OF AVAILABLE TREATMENT, STORAGE, OR DISPOSAL CAPACITY
AT OTHER HAZARDOUS WASTE MANAGEMENT FACILITIES;
(3) CHANGES IN THE PROCESSES FOR THE TREATMENT, STORAGE, OR DISPOSAL
OF HAZARDOUS WASTE MAY BE MADE AT A FACILITY OR ADDITIONAL PROCESSES MAY
BE ADDED IF THE OWNER OR OPERATOR SUBMITS A REVISED PART A PERMIT
APPLICATION PRIOR TO SUCH A CHANGE (ALONG WITH A JUSTIFICATION
EXPLAINING THE NEED FOR THE CHANGE) AND THE DIRECTOR APPROVES THE CHANGE
BECAUSE:
(I) IT IS NECESSARY TO PREVENT A THREAT TO HUMAN HEALTH OR THE
ENVIRONMENT BECAUSE OF AN EMERGENCY SITUATION, OR
(II) IT IS NECESSARY TO COMPLY WITH FEDERAL REGULATIONS (INCLUDING
THE INTERIM STATUS STANDARDS AT 40 CFR PART 265) OR STATE OR LOCAL LAWS.
(4) CHANGES IN THE OWNERSHIP OR OPERATIONAL CONTROL OF A FACILITY MAY
BE MADE IF THE NEW OWNER OR OPERATOR SUBMITS A REVISED PART A PERMIT
APPLICATION NO LATER THAN 90 DAYS PRIOR TO THE SCHEDULED CHANGE. WHEN A
TRANSFER OF OWNERSHIP OR OPERATIONAL CONTROL OF A FACILITY OCCURS, THE
OLD OWNER OR OPERATOR SHALL COMPLY WITH THE REQUIREMENTS OF 40 CFR PART
265, SUBPART H (FINANCIAL REQUIREMENTS), UNTIL THE NEW OENR OR OPERATOR
HAS DEMONSTRATED TO THE DIRECTOR THAT IT IS COMPLYING WITH THAT SUBPART.
ALL OTHER INTERIM STATUS DUTIES ARE TRANSFERRED EFFECTIVE IMMEDIATELY
UPON THE DATE OF THE CHANGE OF OWNERSHIP OR OPERATIONAL CONTROL OF THE
FACILITY. UPON DEMONSTRATION TO THE DIRECTOR BY THE NEW OWNER OR
OPERATOR OF COMPLIANCE WITH THAT SUBPART, THE DIRECTOR SHALL NOTIFY THE
OLD OWNER OR OPERATOR IN WRITING THAT IT NO LONGER NEEDS TO COMPLY WITH
THAT PART AS OF THE DATE OF DEMONSTRATION.
(5) IN NO EVENT SHALL CHANGES BE MADE TO AN HWM FACILITY DURING
INTERIM STATUS WHICH AMOUNT TO RECONSTRUCTION OF THE FACILITY.
RECONSTRUCTION OCCURS WHEN THE CAPITAL INVESTMENT IN THE CHANGES TO THE
FACILITY EXCEEDS FIFTY PERCENT OF THE CAPITAL COST OF A COMPARABLE
ENTIRELY NEW HWM FACILITY.
(D) INTERIM STATUS STANDARDS. DURING INTERIM STATUS, OWNERS OR
OPERATORS SHALL COMPLY WITH THE INTERIM STATUS STANDARDS AT 40 CFR PART
265.
(E) GROUNDS FOR TERMINATION OF INTERIM STATUS. INTERIM STATUS
TERMINATES WHEN:
(1) FINAL ADMINISTRATIVE DISPOSITION OF A PERMIT APPLICATION IS MADE;
OR
(2) INTERIM STATUS IS TERMINATED AS PROVIDED IN SECTION 122.22(A)(3).
(APPLICABLE TO STATE RCRA PROGRAMS, SEE SECTION 123.7.)
IN ADDITION TO THE INFORMATION IN SECTION 122.4(D), PART A OF THE
RCRA APPLICATION SHALL INCLUDE THE FOLLOWING INFORMATION:
(A) THE LATITUDE AND LONGITUDE OF THE FACILITY.
(B) THE NAME, ADDRESS, AND TELEPHONE NUMBER OF THE OWNER OF THE
FACILITY.
(C) AN INDICATION OF WHETHER THE FACILITY IS NEW OR EXISTING AND
WHETHER IT IS A FIRST OR REVISED APPLICATION.
(D) FOR EXISTING FACILITIES, A SCALE DRAWING OF THE FACILITY SHOWING
THE LOCATION OF ALL PAST, PRESENT, AND FUTURE TREATMENT, STORAGE, AND
DISPOSAL AREAS.
(E) FOR EXISTING FACILITIES,PHOTOGRAPHS OF THE FACILITY CLEARLY
DELINEATING ALL EXISTING STRUCTURES; EXISTING TREATMENT, STORAGE, AND
DISPOSAL AREAS; AND SITES OF FUTURE TREATMENT, STORAGE AND DISPOSAL
AREAS.
(F) A DESCRIPTION OF THE PROCESSES TO BE USED FOR TREATING, STORING,
AND DISPOSING OF HAZARDOUS WASTE, AND THE DESIGN CAPACITY OF THESE
ITEMS.
(G) A SPECIFICATION OF THE HAZARDOUS WASTES LISTED OR OR DESIGNATED
UNDER 40 CFR PART 261 TO BE TREATED, STORED, OR DISPOSED AT THE
FACILITY, AN ESTIMATE OF THE QUANTITY OF SUCH WASTES TO BE TREATED,
STORED, OR DISPOSED ANNUALLY, AND A GENERAL DESCRIPTION OF THE PROCESSES
TO BE USED FOR SUCH WASTES.
(APPLICABLE TO STATE RCRA PROGRAMS, SEE SECTION 123.7.).
PART B OF THE RCRA APPLICATION INCLUDES THE FOLLOWING:
(A) GENERAL INFORMATION REQUIREMENTS. THE FOLLOWING INFORMATION IS
REQUIRED FOR ALL FACILITIES:
(1) A GENERAL DESCRIPTION OF THE FACILITY.
(2) CHEMICAL AND PHYSICAL ANALYSES OF THE HAZARDOUS WASTES TO BE
HANDLED AT THE FACILITY. AT A MINIMUM, THESE ANALYSES SHALL CONTAIN ALL
THE INFORMATION WHICH MUST BE KNOWN TO TREAT, STORE OR DISPOSE OF THE
WASTES IN ACCORDANCE WITH PART 264.
(3) A COPY OF THE WASTE ANALYSIS PLAN REQUIRED BY SECTION 264.13(B)
AND, IF APPLICABLE, SECTION 264.13(C).
(4) A DESCRIPTION OF THE SECURITY PROCEDURES AND EQUIPMENT REQUIRED
BY SECTION 264.14, OR A JUSTIFICATION DEMONSTRATING THE REASONS FOR
REQUESTING A WAIVER OF THIS REQUIREMENT.
(5) A COPY OF THE GENERAL INSPECTION SCHEDULE REQUIRED BY SECTION
264.15(B).
(6) A JUSTIFICATION OF ANY REQUEST FOR A WAIVER(S) OF THE
PREPAREDNESS AND PREVENTION REQUIREMENTS OF SECTION 264.30.
(7) A COPY OF THE CONTINGENCY PLAN REQUIRED BY PART 264, SUBPART D.
(8) A DESCRIPTION OF PROCEDURES, STRUCTURES, OR EQUIPMENT USED AT THE
FACILITY TO,
(I) PREVENT UNCONTROLLED REACTION OF INCOMPATIBLE WASTES (FOR
EXAMPLE, PROCEDURES TO AVOID FIRES, EXPLOSIONS, OR TOXIC GASES).
(II) PREVENT HAZARDS IN UNLOADING OPERATIONS (FOR EXAMPLE, RAMPS,
SPECIAL FORKLIFTS).
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EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
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REGULATIONS
(III) PREVENT RUNOFF FROM HAZARDOUS WASTE HANDLING AREAS TO OTHER
AREAS OF THE FACILITY OR ENVIRONMENT, OR TO PREVENT FLOODING (FOR
EXAMPLE, BERMS, DIKES, TRENCHES).
(IV) PREVENT CONTAMINATION OF WATER SUPPLIES.
(V) MITIGATE EFFECTS OF EQUIPMENT FAILURE AND POWER OUTAGES.
(VI) PREVENT UNDUE EXPOSURE OF PERSONNEL TO HAZARDOUS WASTE (FOR
EXAMPLE, PROTECTIVE CLOTHING).
(9) TRAFFIC PATTERN, VOLUME AND CONTROL (FOR EXAMPLE, SHOW TURNS
ACROSS TRAFFIC LANES, AND STACKING LANES (IF APPROPRIATE); PROVIDE
ACCESS ROAD SURFACING ANDLOAD BEARING CAPACITY; SHOW TRAFFIC CONTROL
SIGNALS; PROVIDE ESTIMATES OF TRAFFIC VOLUME (NUMBER, TYPES OF
VEHICLES)).
B. (RESERVED.)
(NOTE - THE REQUIREMENTS SET FORTH IN SECTION 122.25(A) REFLECT THOSE
PERMIT APPLICATION REQUIREMENTS RELATED TO THE INITIAL PROMULGATION OF
PART 264. ADDITIONAL PERMIT APPLICATION REQUIREMENTS INCLUDING SPECIFIC
DESIGN AND OPERATING DATA, FINANCIAL PLANS, AND SITE ENGINEERING
INFORMATION WILL BE PROMULGATED WHEN THE REMAINING PORTIONS OF PART 264
ARE PROMULGATED.)
(APPLICABLE TO STATE RCRA PROGRAMS, SEE SECTION 123.7.)
NOTWITHSTANDING ANY OTHER PROVISION OF THIS PART OR PART 124, THE
FOLLOWING SHALL BE DEEMED TO HAVE A RCRA PERMIT IF THE CONDITIONS LISTED
ARE MET:
(A) OCEAN DISPOSAL BARGES OR VESSELS. THE OWNER OR OPERATOR OF A
BARGE OR OTHER VESSEL WHICH ACCEPTS HAZARDOUS WASTE FOR OCEAN DISPOSAL,
IF THE OWNER OR OPERTOR:
(1) HAS A PERMIT FOR OCEAN DUMPING ISSUED UNDER 40 CFR PART 220
(OCEAN DUMPING, AUTHORIZED BY THE MARINE PROTECTION, RESEARCH, AND
SANCTUARIES ACT, AS AMENDED 33 U.S.C. SECTION 1420 ET SEQ.);
(2) COMPLIES WITH THE CONDITIONS OF THAT PERMIT; AND
(3) COMPLIES WITH THE FOLLOWING HAZARDOUS WASTE REGULATIONS:
(I) 40 CFR SECTION 264.11, IDENTIFICATION NUMBER;
(II) 40 CFR SECTION 264.71, USE OF MANIFEST SYSTEM;
(III) 40 CFR SECTION 264.72, MANIFEST DISCREPANCIES;
(IV) 40 CFR SECTION 264.73(A) AND (B)(1), OPERATING RECORD;
(V) 40 CFR SECTION 264.75, ANNUAL REPORT; AND
(VI) 40 CFR SECTION 264.76, UNMANIFESTED WASTE REPORT.
(B) INJECTION WELLS. THE OWNER OR OPERATOR OF AN INJECTION WELL
DISPOSING OF HAZARDOUS WASTE, IF THE OWNER OR OPERATOR:
(1) HAS A PERMIT FOR UNDERGROUND INJECTION ISSUED UNDER PART 122,
SUBPART C OR PART 123, SUBPART C; AND
(2) COMPLIES WITH THE CONDITIONS OF THAT PERMIT AND THE REQUIREMENTS
OF SECTION 122.45 (REQUIREMENTS FOR WELLS MANAGING HAZARDOUS WASTE.)
(C) PUBLICLY OWNED TREATMENT WORKS. THE OWNER OR OPERATOR OF A POTW
WHICH ACCEPTS FOR TREATMENT HAZARDOUS WASTE, IF THE OWNER OR OPERATOR:
(1) HAS AN NPDES PERMIT;
(2) COMPLIES WITH THE CONDITIONS OF THAT PERMIT; AND
(3) COMPLIES WITH THE FOLLOWING REGULATIONS:
(I) 40 CFR SECTION 264.11, IDENTIFICATION NUMBER;
(II) 40 CFR SECTION 264.71, USE OF MANIFEST SYSTEM;
(III) 40 CFR SECTION 264.72 MANIFEST DISCREPANCIES;
(IV) 40 CFR SECTION 264.73(A) AND (B)(1), OPERATING RECORD;
(V) 40 CFR SECTION 264.75, ANNUAL REPORT;
(VI) 40 CFR SECTION 264.76, UNMANIFESTED WASTE REPORT; AND
(4) IF THE WASTE MEETS ALL FEDERAL, STATE, AND LOCAL PRETREATMENT
REQUIREMENTS WHICH WOULD BE APPLICABLE TO THE WASTE IF IT WERE BEING
DISCHARGED INTO THE POTW THROUGH A SEWER, PIPE, OR SIMILAR CONVEYANCE.
(APPLICABLE TO STATE RCRA PROGRAMS, SEE SECTION 123.7).
NOTWITHSTANDING ANY OTHER PROVISION OF THIS PART OR PART 124, IN THE
EVENT THE DIRECTOR FINDS AN IMMINENT AND SUBSTANTIAL ENDANGERMENT TO
HUMAN HEALTH OR THE ENVIRONMENT THE DIRECTOR MAY ISSUE A TEMPORARY
EMERGENCY PERMIT TO A FACILITY TO ALLOW TREATMENT, SOTRAGE, OR DISPOSAL
OF HAZARDOUS WASTE FOR A NON-PERMITTED FACILITY OR NOT COVERED BY THE
PERMIT FOR A FACILITY WITH AN EFFECTIVE PERMIT. THIS EMERGENCY PERMIT:
(A) MAY BE ORAL OR WRITTEN. IF ORAL, IT SHALL BE FOLLOWED WITHIN
FIVE DAYS BY A WRITTEN EMERGENCY PERMIT;
(B) SHALL NOT EXCEED 90 DAYS IN DURATION;
(C) SHALL CLEARLY SPECIFY THE HAZARDOUS WASTE TO BE RECEIVED, AND THE
MANNER AND LOCATION OF THEIR TREATMENT, STORAGE, OR DISPOSAL;
(D) MAY BE TERMINATED BY THE DIRECTOR AT ANY TIME WITHOUT PROCESS IF
HE OR SHE DETERMINES THAT TERMINATION IS APPROPRIATE TO PROTECT HUMAN
HEALTH AND THE ENVIRONMENT;
(E) SHALL BE ACCOMPANIED BY A PUBLIC NOTICE PUBLISHED UNDER SECTION
124.11(B) INCLUDING:
(1) NAME AND ADDRESS OF THE OFFICE GRANTING THE EMERGENCY
AUTHORIZATION;
(2) ANME AND LOCATION OF THE PERMITTED HWM FACILITY;
(3) A BRIEF DESCRIPTION OF THE WASTES INVOLVED;
(4) A BRIEF DESCRIPTION OF THE ACTION AUTHORIZED AND REASONS FOR
AUTHORIZING IT; AND
(5) DURATION OF THE EMERGENCY PERMIT; AND
(F) SHALLINCORPORATE, TO THE EXTENT POSSIBLE AND NOT INCONSISTENT
WITH THER EMERGENCY SITUATION, ALL APPLICABLE REQUIREMENTS OF THIS PART
AND 40 CFR PARTS 264 AND 266.
(APPLICABLE TO STATE RCRA PROGRAMS, SEE SECTION 122.7.)
THE FOLLOWING CONDITIONS, IN ADDITION TO THOSE SET FORTH IN SECTION
122.7, A-PLY TO ALL RCRA PERMITS:
(A) IN ADDITION SECTION 122.7(A) (DUTY TO COMPLY): THE PERMITTEE
NEED NOT COMPLY WITH THE CONDITIONS OF THIS PERMIT TO THE EXTENT AND FOR
THE DURATION SUCH NONCOMPLIANCE IS AUTHORIZED IN AN EMERGENCY PERMIT.
(SEE SECTION 122.27.) (B) IN ADDITION TO SECTION 122.7(J) (MONITORING):
THE PERMITTEE SHALL MAINTAIN RECORDS FROM ALL GROUND MONITORING WELLS
AND ASSOCIATED GROUNDWATER SURFACE ELEVATIONS, FOR THE ACTIVE LIFE OF
THE FACILITY, AND FOR DISPOSAL FACILITIES FOR THE POST-CLOSURE CARE
PERIOD AS WELL.
(C) IN ADDITION TO SECTION 122.7(L)(1) (NOTICE OF PLANNED CHANGES);
FOR A NEW HWM FACILITY, THE PERMITTEE MAY NOT COMMENCE
TREATMENT, SOTRAGE, OR DISPOSAL OF HAZARDOUS WASTE; AND FOR A
FACILITY BEING MODIFIED THE PERMITTEE MAY NOT TREAT, STORE, OR
DISPOSE OF HAZARDOUS WASTE IN THE MODIFIED PORTION OF THE
FACILITY, UNTIL:
(1) THE PERMITTEE HAS SUBMITTED TO THE DIRECTOR BY CERTIFIED MAIL OR
HAND DELIVERY A LETTER SIGNED BY THE PERMITTEE AND A REGISTERED
PROFESSIONAL ENGINEER STATING THAT THE FACILITY HAS BEEN CONSTRUCTED OR
MODIFIED IN COMPLIANCE WITH THE PERMIT; AND
(2)(I) THE DIRECTOR HAS INSPECTED THE MODIFIED OR NEWLY CONSTRUCTED
FACILITY AND FINDS IT IS IN COMPLIANCE WITH THE CONDITIONS OF THE
PERMIT; OR
(II) WITHIN 15 DAYS OF THE DATE OF SUBMISS OF THE LETTER IN PARAGRAPH
(C)(1) OF THIS SECTION, THE PERMITTEE HAS NOT RECEIVED NOTICE FROM THE
DIRECTOR OF HIS OR HER INTENT TO INSPECT, PRIOR INSPECTION IS WAIVED AND
THE PERMITTEE MAY COMMENCE TREATMENT, STORAGE, OR DISPOSAL OF HAZARDOUS
WASTE.
(D) THE FOLLOWING SHALL BE INCLUDED AS INFORMATION WHICH MUST BE
REPORTED ORALLY WITHIN 24 HOURS UNDER SECTION 122.7(L)(6):
(1) INFORMATION CONCERNING RELEASE OF ANY HAZARDOUS WASTE THAT MAY
CAUSE AN ENDANGERMENT TO PUBLIC DRINKING WATER SUPPLIES.
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EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
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EPA
113647
REGULATIONS
(2) ANY INFORMATION OF A RELEASE OR DISCHARGE OF HAZARDOUS WASTE, OR
OF A FIRE OR EXPLOSION FROM A HWM FACILITY, WHICH COULD THREATEN THE
ENVIRONMENT OR HUMAN HEALTH OUTSIDE THE FACILITY. THE DESCRIPTION OF
THE OCCURRENCE AND ITS CAUSE SHALL INCLUDE:
(I) NAME, ADDRESS, AND TELEPHONE NUMBER OF THE OWNER OR OPERATOR;
(II) NAME, ADDRESS, AND TELEPHONE NUMBER OF THE FACILITY;
(III) DATE, TIME, AND TYPE OF INCIDENT;
(IV) NAME AND QUANTITY OF MATERIAL(S) INVOLVED;
(V) THE EXTENT OF INJURIES, IF ANY;
(VI) AN ASSESSMENT OF ACTUAL OR POTENTIAL HAZARDS TO THE ENVIRONMENT
AND HUMAN HEALTH OUTSIDE THE FACILITY, WHERE THIS APPLICABLE: AND
(VII) ESTIMATED QUANTITY AND DISPOSITION OF RECOVERED MATERIAL THAT
RESULTED FROM THE INCIDENT. THE DIRECTOR MAY WAIVE THE FIVE DAY WRITTEN
NOTICE REQUIREMENT IN FAVOR OF A WRITTEN REPORT WITHIN FIFTEEN DAYS.
(E) THE FOLLOWING REPORTS REQUIRED BY PART 264 SHALL BE SUBMITTED IN
ADDITION TO THOSE REQUIRED BY SECTION 122.7(L) (REPORTING REQUIREMENTS):
(1) MANIFEST DISCREPANCY REPORT: IF A SIGNIFICANT DISCREPANCY IN A
MANIFEST IS DISCOVERED, THE PERMITTEE MUST ATTEMPT TO RECONCILE THE
DISCRPANCY. IF NOT RESOLVED WITHIN FIFTEEN DAYS, THE PERMITTEE MUST
SUBMIT A LETTER REPORT INCLUDING A COPY OF THE MANIFEST TO THE DIRECTOR.
(SEE 40 CFR SECTION 264.72.)
(2) UNMANIFESTED WASTE REPORT MUST BE SUBMITTED TO THE DIRECTOR
WITHIN 15 DAYS OF RECEIPT OF UNMANIFESTED WASTE. (SEE SECTION 264.76.)
(3) ANNUAL REPORT: AN ANNUAL REPORT MUST BE SUBMITTED COVERING
FACILITY ACTIVITIES DURING THE PREVIOUS CALENDAR YEAR. (SEE 40 CFR
SECTION 264.75.)
(4) (RESERVED.).
(NOTE. -- THE ABOVE REPORTS ARE REQUIRED IN PART 264 AS INITIALLY
PROMULGATED. ADDITIONAL REPORTS WILL BE REQUIRED AND ADDED TO THIS
SECTION WHEN REMAINING PORTIONS OF PART 264 ARE PROMULGATED.)
(APPLICABLE TO STATE RCRA PROGRAMS, SEE SECTION 123.7.)
IN ADDITION TO THE CONDITIONS ESTABLISHED UNDER SECTION 122.8(A);
EACH RCRA PERMIT SHALL INCLUDE EACH OF THE APPLICABLE REQUIREMENTS
SPECIFIED IN 40 CFR PARTS 264 AND 266.
(APPLICABLE TO STATE PROGRAMS, SEE SECTION 123.7.)
THE DIRECTOR MAY ISSUE A PERMIT UNDER THIS PART TO ANY CLASS I UIC
WELL (SEE SECTION 122.32) INJECTING HAZARDOUS WASTES WIHTIN A STATE IN
WHICH NO UIC PROGRAM HAS BEEN APPROVED OR PROMULGATED. ANY SUCH PERMIT
SHALL APPLY AND INSUFE COMPLIANCE WITH ALL APPLICABLE REQUIREMENTS OF 40
CFR PART 264, SUBPART R (RCRA STANDARDS FORWLLS), AND SHALL BE FOR A
TERM NOT TO EXCEED TWO YEARS. NO SUCH PERMIT SHALL BE ISSUED AFTER
APPROVAL OR PROMULGATION OF A UIC PROGRAM IN THE STATE. ANY PERMIT
UNDER THIS SECTION SHALL CONTAIN A CONDITION PROVIDING THAT IT WILL
TERMINATE UPON FINAL ACTION BY THE DIRECTOR UNDER A UIC PROGRAM TO ISSUE
OR DENY A UIC PERMIT FOR THE FACILITY.
(A) CONTENT OF SUBPART C. THE REGULATIONS IN THIS SUBPART SET FORTH
THE SPECIFIC REUQIREMENTS FOR THE UIC PROGRAM. THEY APPLY TO EPA, AND
TO APPROVED STATES TO THE EXTENT SET FORTH IN PART 123. SECTIONS OF
THIS SUBPART WHICH ARE APPLICABLE TO STATES ARE INDICATED AT THE SECTION
HEADING AS FOLLOWS: (APPLICABLE TO STATE UIC PROGRAMS, SEE SECTION
123.7). THE REGULATIONS IN THIS SUBPART ARE SUPPLEMENTAL TO THE
REQUIREMENTS IN PART 122, SUBPART A, WHICH CONTAINS REQUIREMENTS FOR ALL
PROGRAMS.
(B) AUTHORITY. (1) SECTION 1421 OF SDWA REQUIRES THE ADMINISTRATOR TO
PROMULGATE REGULATIONS ESTABLISHING MINIMUM REQUIREMENTS FOR EFFECTIVE
UIC PROGRAMS.
(2) SECTIONS 1422 OF SDWA REQUIRES THE ADMINISTRATOR TO LIST IN THE
FEDERAL REGISTER "EACH STATE FOR WHICH IN HIS JUDGMENT A STATE
UNDERGROUND INJECTION CONTROL PROGRAM MAY BE NECESSARY TO ASSURE THAT
UNDERGROUND INJECTION WILL NOT ENDANGER DRINKING WATER SOURCES" AND TO
ESTABLISH BY REGULATION A PROGRAM FOR EPA ADMINISTRATION OF UIC PROGRAMS
IN THE ABSENCE OF AN APPROVED STATE PROGRAM IN A LISTED STATE.
(3) SECTION 1423 OF SDWA PROVIDES PROCEDURES FOR EPA ENFORCEMENT OF
UIC REQUIREMENTS WHERE THE STATE FAILS TO ENFORCE THOSE REQUIREMENTS.
(4) SECTION 1431 AUTHORIZES THE ADMINISTRATOR TO TAKE ACTION TO
PROTECT THE HEALTH OF PERSONS WHEN A CONTAMINANT WHICH IS PRESENT IN OR
MAY ENTER A PUBLIC WATER SYSTEM MAY PRESENT AN IMMINENT AND SUBSTANTIAL
ENDANGERMENT TO THE HEALTH OF PERSONS.
(5) SECTION 1445 OF SDWA AUTHORIZES THE PROMULGATION OF REGULATIONS
FOR SUCH RECORDKEEPING REPORTING, AND MONITORING REQUIREMENTS "AS THE
ADMINISTRATOR MAY REASONABLY REQUIRE . . . TO ASSIST HIM IN ESTABLISHING
REGULATIONS UNDER THIS TITLE," AND A "RIGHT OF ENTRY AND INSPECTION TO
DETERMINE COMPLIANCE WITH THIS TITLE, INCLUDING FOR THIS PURPOSE,
INSPECTION, AT REASONABLE TIMES, OF RECORDS, FILES, PAPERS, PROCESSES,
CONTROLS, AND FACILITIES. . ."
(6) SECTION 1450 OF SDWA AUTHORIZES THE ADMINISTRATOR "TO PRESCRIBE
SUCH REGULATIONS AS ARE NECESSARY OR APPROPRIATE TO CARRY OUT HIS
FUNCTIONS" UNDER SDWA.
(C) OVERVIEW OF THE UIC PROGRAM. A UIC PROGRAM IS NECESSARY IN ANY
STATE LISTED BY EPA UNDER SECTION 1422 OF SDWA. BECAUSE ALL STATES HAVE
BEEN LISTED, ALL STATES MUST SUBMIT A UIC PROGRAM WITHIN 270 DAYS AFTER
THE EFFECTIVE DATE OF THESE RULES AND 40 CFR PART 146, UNLESS THE
ADMINISTRATOR GRANTS AN EXTENSION, WHICH CAN BE FOR A PERIOD NOT TO
EXCEED AN ADDITIONAL 270 DAYS. IF A STATE FAILS TO SUBMIT AN
APPROPRIATE PROGRAM, EPA WILL ESTABLISH A PROGRAM FOR THAT STATE. ONCE
A PROGRAM IS ESTABLISHED, SDWA PROVIDES THAT ALL UNDERGROUND INJECTIONS
IN LISTED STATES ARE UNLAWFUL AND SUBJECT TO PENALTIES UNLESS AUTHORIZED
BY A PERMIT OR A RULE. THIS SUBPART SETS FORTH THE REQUIREMENTS
GOVERNING AUTHORIZATIONS BY PERMIT OR RULE AND PROHIBITS AUTHORIZATION
OF CERTAIN TYPES OF INJECTIONS. THE TECHNICAL REGULATIONS GOVERNING
THESE AUTHORIZATIONS APPEAR IN 40 CFR PART 146.
(D) SCOPE OF THE PERMIT OR RULE REQUIREMENT. THE UIC PERMIT PROGRAM
REGULATES UNDERGROUND INJECTIONS BY FIVE CLASSES OF WELLS (SEE
DEFINITIONS OF "WELL INJECTION," SECTION 122.3(. THE FIVE CLASSES OF
WELLS ARE SET FORTH IN SECTION 122.32. ALL OWNERS OR OPERATORS OF THESE
INJECTION WELLS MUST BE AUTHORIZED EITHER BY PERMIT OR RULE BY THE
DIRECTOR. IN CARRYING OUT THE MANDATE OF THE DSWA, THIS SUBPART
PROVIDES THAT NO CLASS I, II, OR III WELL SHALL BE AUTHORIZED BY PERMIT
OR RULE IF IT RESULTS IN MOVEMENT OF FLUID INTO UNDERGROUND SOURCES OF
DRINKING WATER (USDWS) (SECTION 122.34). THE TECHNICAL REQUIREMENTS OF
PART 146 ARE DESIGNED TO INSURE THAT SUCH MOVEMENT WILL NOT OCCUR. NO
CLASS V WELL SHALL BE AUTHORIZED BY PERMIT OR RULE IF IT RESULTS IN THE
PRESENCE OF ANY CONTAMINANT IN USDWS WHICH MAY ADVERSELY AFFECT THE
HEALTH OF PERSONS (SECTION 122.34). EXISTING CLASS IV WELLS WHICH
INJECT HAZARDOUS WASTE DIRECTLY INTO AN UNDERGROUND SOURCE OF DRINKING
WATER ARE TO BE ELIMINATED OVER A PERIOD OF SIX MONTHS AND NEW SUCH
CLASS IV WELLS ARE TO BE PROBHIBITED (SECTION 122.36). CLASS V WELLS
WILL BE INVENTORIED AND ASSESSED AND REGULATORY ACTION WILL BE
ESTABLISHED AT A LATER DATE. IN THE MEANTIME, IF REMEDIAL ACTION ACTION
APPEARS NECESSARY, AN INDIVIDUAL PERMIT MAY BE REQUIRED (SECTION 122.37)
OR THE DIRECTOR MUST REQUIRE REMEDIAL ACTION OR CLOSURE BY ORDER
(SECTION 122.34(C)).
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FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 149 OF 225
COSTLE DM ADMINISTRATOR
EPA
113648
REGULATIONS
DURING UIC PROGRAM DEVELOPMENT, THE DIRECTOR MAY IDENTIFY AQUIFERS
AND PORTIONS OF AQUIFERS WHICH ARE ACTUAL OR POTENTIAL SOURCES OF
DRINKING WATER (SEE SECTION 123.4(G) FOR STATE PROGRAMS). THIS WILL
PROVIDE AN AID TO THE DIRECTOR IN CARRYING OUT HIS OR HER DUTY TO
PROTECT ALL USDWS. AN AQUIFER IS A USDW IF IT FITS THE DEFINITION, EVEN
IF IT HAS NOT BEEN "IDENTIFIED." THE DIRECTOR MAY ALSO DESIGNATE
"EXEMPTED AQUIFERS" USING CRITERIA IN PART 146. SUCH AQUIFERS ARE THOSE
WHICH WOULD OTHERWISE QUALIFY AS "UNDERGROUND SOURCES OF DRINKING WATER"
TO BE PROTECTED, BUT WHICH HAVE NO REAL POTENTIAL TO BE USED AS DRINKING
WATER SOURCES. THEREFORE THEY ARE NOT USDWS. NO AQUIFER IS AN
"EXEMPTED AQUIFER" UNTIL IT HAS BEEN AFFIRMATIVELY DESIGNATED UNDER THE
PROCEDURES IN SECTION 122.35. AQUIFERS WHICH DO NOT FIT THE DEFINITION
OF "UNDERGROUND SOURCES OF DRINKING WATER" ARE NOT "EXEMPTED AQUIFERS."
THEY ARE SIMPLY NOT SUBJECT TO THE SPECIAL PROTECTION AFFORDED USDWS.
(1) SPECIFIC INCLUSIONS. THE FOLLOWING WELLS ARE INCLUDED AMONG
THOSE TYPES OF INJECTION ACTIVITIES WHICH ARE COVERED BY THE UIC
REGULATIONS. (THIS LIST IS NOT INTENDED TO BE EXCLUSIVE BUT IS FOR
CLARIFICATION ONLY.)
(I) ANY INJECTION WELL LOCATED ON A DRILLING PLATFORM INSIDE A
STATE'S TERRITORIAL WATERS.
(II) ANY DUG HOLE OR WELL THAT IS DEEPER THAN ITS LARGEST SURFACE
DIMENSION, WHERE THE PRINCIPAL FUNCTION OF THE HOLE IS EMPLACEMENT OF
FLUIDS.
(III) ANY SEPTIC TANK OR CESSPOOL USED BY GENERATORS OF HAZARDOUS
WASTE, OR BY OWNERS OR OPERATORS OF HAZARDOUS WASTE MANAGEMENT
FACILITIES, TO DISPOSE OF FLUIDS CONTAINING HAZARDOUS WASTE.
(IV) ANY SEPTIC TANK, CESSPOOL, OR OTHER WELL USED BY A A MULTIPLE
DWELLING, COMMUNICTY, OR REGIONAL SYSTEM FOR THE INJECTION OF WASTES.
(2) SPECIFIC EXCLUSIONS. THE FOLLOWING ARE NOT COVERED BY THESE
REGULATIONS;
(I) INJECTION WELLS LOCATED ON A DRILLING PLATFORM OR OTHER SITE THAT
IS BEYOND A STATE'S TERRITORIAL WATERS.
(II) INDIVIDUAL OR SINGLE FAMILY RESIDENTIAL WASTE DISPOSAL SYSTEMS
SUCH AS DOMESTIC CESSPOOLS OR SEPTIC SYSTEMS.
(III) ANY DUG HOLE WHICH IS NOT USED FOR EMPLACEMENT OF FLUIDS
UNDERGROUND.
(APPLICABLE TO STATE UIC PROGRAMS, SEE SECTION 123.7.)
INJECTION WELLS ARE CLASSIFIED AS FOLLOWS:
(A) CLASS I.
(1) WELLS USED BY GENERATORS OF HAZARDOUS WASTES OR OWNERS OR
OPERATORS OF HAZARDOUS WASTE MANAGEMENT FACILITIES TO INJECT HAZARDOUS
WASTE, OTHER THAN CLASS IV WELLS.
(2) OTHER INDUSTRIAL AND MUNICIPAL DISPOSAL WELLS WHICH INJECT FULIDS
BENEATH THE LOWERMOST FORMATION CONTAINING WITHIN ONE QUARTER MILE OF
THE WELL BORE, AN UNDERGROUND SOURCE OF DRINKING WATER.
(B) CLASS II. WELLS WHICH INJECT FLUIDS;
(1) WHICH ARE BROUGHT TO THE SURFACE IN CONNECTION WITH CONVENTIONAL
OIL OR NATURAL GAS PRODUCTION;
(2) FOR ENHANCED RECOVERY OF OIL OR NATURAL GAS; AND
(3) FOR STORAGE OF HYDROCARBONS WHICH ARE LIQUID AT STANDARD
TEMPERATURE AND PRESSURE.
(4) RECOVERY OF GEOTHERMAL ENERGY.
(D) CLASS IV. WELLS USED BY GENERATORS OF HAZARDOUS WASTES OR OF
RADIOACTIVE WASTES, BY OWNERS OR OPERATORS OF HAZARDOUS WASTE MANAGEMENT
FACILITIES, OR BY OWNERS OR OPERATORS OF RADIOACTIVE WASTE DISPOSAL
SITES TO DISPOSE OF HAZARDOUS WASTES OR RADIOACTIVE WASTES INTO OR ABOVE
A FORMATION WHICH WITHIN ONE QUARTER MILE OF THE WELL CONTAINS AN
UNDERGROUND SOURCE OF DRINKING WATER.
(E) CLASS V. INJECTION WELLS NOT INCLUDED IN CLASSES I, II, OR IV.
(APPLICABLE TO STATE PROGRAMS, SEE SECTION 123.7.)
ANY UIC PROGRAM SHALL PROHIBIT, EFFECTIVE NO LATER THAN THE DATE OF
APPROVAL (FOR STATE PROGRAMS) OR THE EFFECTIVE DATE OF REGULATIONS
ESTABLISHING THE PROGRAM (FOR EPA-ADMINISTERED PROGRAMS( ANY UNDERGROUND
INJECTION, EXCEPT AS AUTHORIZED BY PERMIT OR RULE ISSUED UNDER THIS PART
AND PART 123, AS APPLICABLE. ANY UIC PROGRAM SHALL ALSO PROHIBIT THE
CONSTRUCTION OF ANY WELL REQUIRED TO HAVE A PERMIT UNDER THIS PART UNTIL
THE PERMIT HAS BEEN ISSUED.
(APPLICABLE TO STATE UIC PROGRAMS, SEE SCTION 123.7.)
(A) NO UIC AUTHORIZATION BY PERMIT OR RULE SHALL BE ALLOWED IN THE
FOLLOWING CIRCUMSTANCES:
(1) WHERE A CLASS I, II, OR III WELL CAUSES OR ALLOWS MOVEMENT OF
FLUID INTO UNDERGROUND SOURCES OF DRINKING WATER.
(2) WHERE A CLASS IV OR V WELL CAUSES OR ALLOWS MOVEMENT OF FLUID
CONTAINING ANY CONTAMINANT INTO UNDERGROUND SOURCES OF DRINKING WATER,
AND THE PRESENCE OF THAT CONTAMINANT MAY CAUSE A VIOLATION OF ANY
PRIMARY DRINKING WATER REGULATION UNDER 40 CFR PART 142 OR WHICH MAY
ADVERSELY AFFECT THE HEALTH OF PERSONS.
(B) FOR CLASS, I, II, AND III WELLS, IF ANY MONITORING INDICATES THE
MOVEMENT OF INJECTION OR FORMATION FLUIDS INTO UNDERGROUND SOURCES OF
DRINKING WATER, THE DIRECTOR SHALL PRESCRIBE SUCH ADDITIONAL
REQUIREMENTS FOR CONSTRUCTION, CORRECTIVE ACTION, OPERATION, MONITORING,
OR REPORTING (INCLUDING CLOSURE OF THE INJECTION WELL) AS ARE NECESSARY
TO PREVENT SUCH MOVEMENT. IN THE CASE OF WELLS AUTHORIZED BY PERMIT,
THESE ADDITIONAL REQUIREMENTS SHALL BE IMPOSED BY MODIFYING THE PERMIT
IN ACCORDANCE WITH SECTION 122.15, OR THE PERMIT HAS BEEN VIOLATED. IN
THE CASE OF WELLS AUTHORIZED BY RULE, SEE SECTION 122.37(A).
(C) FOR CLASS V WELLS, IF AT ANY TIME THE DIRECTOR LEARNS THAT A
CLASS V WELL MAY CAUSE A VIOLATION OF PRIMARY DRINKING WATER REGULATIONS
UNDER 40 CFR PART 142, HE OR SHE SHALL;
(1) REQUIRE THE INJECTOR TO OBTAIN AN INDIVIDUAL PERMIT;
(2) ORDER THE INJECTOR TO TAKE SUCH ACTIONS (INCLUDING WHERE REQUIRED
CLOSURE OF THE INJECTION WELL) AS MAY BE NECESSARY TO PREVENT THE
VIOLATION; OR
(3) TAKE ENFORCEMENT ACTION.
(D) WHENEVER THE DIRECTOR LEARNS THAT A CLASS V WELL MAY BE OTHERWISE
ADVERSELY AFFECTING THE HEALTH OF PERSONS, HE OR SHE MAY PRESCRIBE SUCH
ACTIONS AS MAY BE NECESSARY TO PREVENT THE ADVERSE EFFECT, INCLUDING ANY
ACTION AUTHORIZED UNDER PARAGRAPH (C) OF THIS SECTION.
(E) NOTWITHSTANDING ANY OTHER PROVISION OF THIS SECTION, THE DIRECTOR
MAY TAKE EMERGENCY ACTION UPON RECEIPT OF INFORMATION THAT A CONTAMINANT
WHICH IS PRESENT IN OR IS LIKELY TO ENTER A PUBLIC WATER SYSTEM MAY
PRESENT AN IMMINENT AND SUBSTANTIAL ENDANGERMENT TO THE HEALTH OF
PERSONS.
(APPLICABLE TO STATE UIC PROGRAMS, SEE SECTION 123.7.)
(A) THE DIRECTOR MAY IDENTIFY (BY NARRATIVE DESCRIPTION,
ILLUSTRATIONS, MAPS, OR OTHER MEANS) AND SHALL PROTECT, EXCEPT WHERE
EXEMPTED UNDER PARAGRAPH (B) OF THIS SECTION, AS AN UNDERGROUND SOURCE
OF DRINKING WATER, ALL AQUIFERS OR PARTS OF AQUIFERS WHICH MEET THE
DEFINITION OF AN "UNDERGROUND SOURCE OF DRINKING WATER" IN SECTION
122.3. EVEN IF AN AQUIFER HAS NOT BEEN SPECIFICALLY IDENTIFIED BY THE
DIRECTOR, IT IS AN UNDERGROUND SOURCE OF DRINKING WATER IF IT MEETS THE
DEFINITION IN SECTION 122.3.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 150 OF 225
COSTLE DM ADMINISTRATOR
EPA
113649
REGULATIONS
(B) AFTER NOTICE AND OPPORTUNITY FOR A PUBLIC HEARING THE DIRECTOR
MAY IDENTIFY (BY NARRATIVE DESCRIPTION, ILLUSTRATIONS, MAPS, OR OTHER
MEANS) AND DESCRIBE IN GEOGRAPHIC AND/OR GEOMETRIC TERMS (SUCH AS
VERTICAL AND LATERAL LIMITS AND GRADIENT) WHICH ARE CLEAR AND DEFINITE,
ALL AQUIFERS OR PARTS THEREOF WHICH THE DIRECTOR PROPOSES TO DESIGNATE
AS EXEMPTED AQUIFERS USING THE CRITERIA IN 40 CFR SECTION 146.04. FOR
STATE UIC PROGRAMS, NO SUCH DESIGNATION SHALL BE FINAL UNTIL APPROVED BY
THE ADMINISTRATOR AS PART OF THE STATE PROGRAM. SUBSEQUENT TO PROGRAM
APPROVAL IDENTIFICATION OF ADDITIONAL EXEMPTED AQUIFERS SHALL BE TREATED
AS PROGRAM MODIFICATIONS UNDER SECTION 123.5(B)(8).
(APPLICABLE TO STATE UIC PROGRAMS, SEE SECTION 123.7.)
(A) IN ADDITION TO THE REQUIREMENT OF SECTION 122.45, ANY UIC PROGRAM
SHALL PROHIBIT:
(1) THE CONSTRUCTION OF ANY CLASS IV WELL FOR THE INJECTION OF
HAZARDOUS WASTE DIRECTLY INTO AN UNDERGROUND SOURCE OF DRINKING WATER;
(2) THE INJECTION OF HAZARDOUS WASTE DIRECTLY INTO AN UNDERGROUND
SOURCE OF DRINKING WATER THROUGH A CLASS IV WELL THAT WAS NOT IN
OPERATION PRIOR TO THE EFFECTIVE DATE OF THIS PART;
(3) ANY INCREASE IN THE AMOUNT OF HAZARDOUS WASTE OR CHANGE IN THE
TYPE OF HAZARDOUS WASTE INJECTED INTO A WELL INJECTING HAZARDOUS WASTE
DIRECTLY INTO A USDW.
(4) THE OPERATION OF ANY CLASS IV WELL INJECTING HAZARDOUS WASTE
DIRECTLY INTO A USDW AFTER 6 MONTHS FOLLOWING APPROVAL OR PROMULGATION
OF ANY UIC PROGRAM FOR A STATE.
(APPLICABLE TO STATE UIC PROGRAMS, SEE SECTION 123.7.)
(A) TYPES OF UNDERGROUND INJECTION WHICH MAY BE AUTHORIZED BY RULE.
THE DIRECTOR MAY AUTHORIZE UNDERGROUND INJECTIONS BY RULE AS OUTLINED IN
THIS PARAGRAPH. UNDERGROUND INJECTIONS NOT AUTHORIZED BY RULE OR BY
PERMIT ARE PROHIBITED (SEE SECTION 122.33).
(1) INJECTION INTO EXISTING CLASS I, II (EXCEPT EXISTING ENHANCED
RECOVERY AND HYDROCARBON STORAGE), AND III WELLS MAY BE AUTHORIZED BY
RULE FOR PERIODS UP TO FIVE YEARS FROM THE DATE OF APPROVAL OR
PROBULGATION OF THE UIC PROGRAM. (ALL WELLS MUST BE ISSUED PERMITS
WITHIN THE FIVE YEAR PERIOD OR CLOSE DOWN AT TIS END, UNLESS THE RULE IS
CONTINUED UNDER SECTION 122.38(A).) THE RULE SHALL REQUIRE COMPLIANCE
WITH APPLICABLE REQUIREMENTS OF 40 CFR PART 146 AS SOON AS POSSIBLE BUT
NOT LATER THAN ONE YEAR AFTER THE AUTHORIZATION RULES AUTHORIZING
EXISTING CLASS II AND CLASS III FACILITIES MAY ALLOW THEM TO CONTINUE
NORMAL OPERATIONS UNTIL PERMITTED, INCLUDING CONSTRUCTION AND OPERATION
OF NEW INJECTION WELLS AT THE FACILITITY SITE, PROVIDED THE OWNER OR
OPERATOR MAINTAINS COMPLIANCE WITH ALL APPLICABLE REQUIREMENTS.
( ) INJECTION INTO EXISTING CLASS II ENHANCED RECOVERY AND
HYDROCARBON STORAGE WELLS MAY BE AUTHORIZED FOR THE LIFE OF THE WELL.
THE RULE SHALL INCLUDE COMPLIANCE SCHEDULES FOR ACHIEVING APPLICABLE
REQUIREMENTS OF 40 CFR 146 NO LATER THAN ONE YEAR, AND WITH THE
CONSTRUCTION REQUIREMENTS OF 40 CFR PART 146 NO LATER THAN THREE YEARS,
AFTER THE PROMULGATION OF THE RULE.
(3) INJECTION INTO EXISTING CLASS IV WELLS INJECTING DIRECLTY INTO A
USDW MAY BE AUTHORIZED FOR A PERIOD OF NOT MORE THAN SIX MONTHS AFTER
APPROVAL OR PROMULGATION OF THE UIC PROGRAM. THE RULE SHALL REQUIRE
MONITORING AND REPORTING AS SET FORTH IN 40 CFR SECTION 146.44 WITHIN 90
DAYS OF THE AUTHORIZATION.
(4) INJECTIONS INTO CLASS V WELLS MAY BE AUTHORIZED INDEFINITELY,
SUBJECT TO THE REQUIREMENT OF PARAGRAPHS (B) AND (D) OF THIS SECTION AND
40 CFR SECTION 146.53. HOWEVER, THE DIRECTOR MUST HAVE AUTHORITY TO
WITHDRAW THE AUTHORIZATION IF REQUIRED UNDER THIS PART.
(B) REQUIREMENTS OF RULES. ANY RULE PROMULGATED BY THE DIRECTOR
SHALL APPLY, AND ENSURE COMPLIANCE WITH, THE FOLLOWING REQUIREMENTS
APPLICABLE TO PERMITTEES, EXCPET THAT THE TERMS "PERMIT" AND "PERMITTEE"
SHALL BE READ TO INCLUDE RULES AND THOSE AUTHROIZED BY RULE;
(1) SECTION 122.41(A) -- (EXEMPTION FROM RULE WHERE AUTHORIZED BY
TEMPORARY PERMITS);
(2) SECTION 122.41(B) -- (RETENTION OF RECORDS);
(3) SECTION 122.41(D) -- (REPORTING WITHIN 24 HOURS);
(4) SECTION 122.41(E) -- (180 DAYS NOTICE OF ABANDONMENT);
(5) CONSTRUCTION REQUIREMENTS UNDER SECTION 146.12 (CLASS I), SECTION
146.22 (CLASS II), AND SECTION 146.32 (CLASS III);
(6) FOR CLASS I, II, OR III WELLS, CORRECTIVE ACTION UNDER SECTION
146.07;
(7) OPERATING, MONITORING, AND REPORTING REQUIREMENTS UNDER SECTION
146.13 (CLASS I), SECTION 146.23 (CLASS II), AND SECTION 146.33 (CLASS
III);
(8) SECTION 122.42(G) -- (FINANCIAL RESPONSIBILITY);
(9) MECHANICAL INTEGRITY REQUIREMENTS UNDER SECTION 146.08.
(C) REQUIRING A PERMIT. (1) THE DIRECTOR MAY REQUIRE ANY CLASS I,
II, III, OR V INJECTION WELL AUTHORIZED BY A RULE TO APPLY FOR AND
OBTAIN AN INDIVIDUAL OR AREA UIC PERMIT. CASES WHERE INDIVIDUAL OR AREA
UIC PERMITS MAY BE REQUIRED INCLUDE;
(I) THE INJECTION WELL IS NOT IN COMPLIANCE WITH ANY REQUIREMENT OF
THE RULE;
(NOTE. -- ANY UNDERGROUND INJECTION WHICH VIOLATES ANY RULE UNDER
THIS SECTION IS SUBJECT TO APPROPRIATE ENFORCEMENT ACTION)
(II) THE INJECTION WELL IS NOT OR NO LONGER IS WITHIN THE CATEGORY OF
WELLS AND TYPES OF WELL OPERATIONS AUTHROIZED IN THIS RULE;
(III) THE PROTECTION OF USDWS REQUIRES THAT THE INJECTION OPERATION
BE REGULATED BY REQUIREMENTS, SUCH AS FOR CORRECTIVE ACTION, MONITORING
AND REPORTING, OR OPERATION, WHICH ARE NOT CONTAINED IN THE RULE.
(2) FOR EPA ADMINISTRERED PROGRAMS, THE REGIONAL ADMINISTRATOR MAY
REQUIRE THE OWNER OR OPERATOR AUTHORIZED BY A RULE TO APPLY FOR AN
INDIVIDUAL OR AREA UIC PERMIT UNDER THIS PARAGRAPH ONLY IF THE OWNER OR
OPERATOR HAS BEEN NOTIFIED IN WIRITING THAT A PERMIT APPLICATION IS
REQUIRED. THE NOTICE SHALL INCLUDE A BRIEF STATEMENT OF THE REASONS FOR
THIS DECISION, AN APPLICATION FORM, A STATEMENT SETTING A TIME FOR THE
OWNER OR OPERATOR TO FILE THE APPLICATION, AND A STATEMENT THAT UPON THE
EFFECTIVE DATE OF THE UIC PERMIT THE RULE NO LONGER APPLIES TO THE
ACTIVITIES REGULTED UNDER THE UIC PROGRAMS.
(3) ANY OWNER OR OPERATOR AUTHORIZED BY A RULE MAY REQUEST TO BE
EXCLUDED FROM THE COVERAGE OF THE RULE BY APPLYING FOR AN INDIVIDUAL OR
AREA UIC PERMIT. THE OWNER OR OPERATOR SHALL SUBMIT AN APPLICATION
UNDER SECTION 122.38 WITH REASONS SUPPORTING THE REQUEST, TO THE
DIRECTOR. THE DIRECTOR MAY GRANT ANY SUCH REQUEST.
(D) INVENTORY REQUIREMENTS. ALL INJECTION WELLS COVERED BY RULE
SHALL SUBMIT INVENTORY INFORMATION TO THE DIRECTOR. ANY RULE UNDER THIS
SECTION SHALL PROVIDE FOR THE AUTOMATIC TERMINATION OF AUTHROIZATION FOR
ANY WELL WHICH FAILS TO COMPLY WITHIN THE TIME SPECIFICED IN PARAGRAPH
(C)(3) OF THIS SECTION.
(1) CONTENTS. THE DIRECTOR SHALL REQUIRE AT LEAST THE INFORMATION
LISTED IN SECTION 146.52 AS PART OF THE INVENTORY.
(2) NOTICE. UPON APPROVAL OF THE UIC PROGRAM IN A STATE, THE DIRECTOR
SHALL NOTIFY OWNERS OR OPERATORS OF INJECTION WELLS OF THEIR DUTY TO
SUBMIT INVENTORY INFORMATION. THE METHOD OF NOTIFICATION SELECTED BY
THE DIRECTOR MUST ASSURE THAT THE OWNER OR OPERATORS WILL BE MADE AWARE
OF THE INVENTORY REQUIREMENTS.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 151 OF 225
COSTLE DM ADMINISTRATOR
EPA
113650
REGULATIONS
(3) DEADLINES. OWNERS OR OPERATORS OF INJECTION WELLS MUST SUBMIT
INVENTORY INFORMATION NO LATER THAN ONE YEAR AFTER THE AUTHORIZATION BY
RULE. THE DIRECTOR NEED NOT REQUIRE INVENTORY INFORMATION FROM ANY
FACILITY WITH INTERIM STATUS UDNER RCRA.
(E) ASSESSMENT OF CLASS V WELLS. THE DIRECTOR SHALL, WITHIN THREE
YEARS OF APPROVAL OF THE PROGRAM IN A STATE SUBMIT A REPORT AND
RECOMMENDATIONS TO EPA IN COMPLIANCE WITH SECTION 146.52(B).
(APPLICABLE TO STATE UIC PROGRAMS, SEE SECTION 123.7.)
(A) PERMIT APPLICATION. EXCEPT AS PROVIDED IN SECTION 122.37
(AUTHORIZATION BY RULE), ALL UNDERGROUND INJECTIONS INTO CLASS I, II, OR
III WELLS IN LISTED STATES SHALL BE PROHIBITED UNLESS AUTHORIZED BY
PERMIT. THOSE AUTHORIZED BY A RULE UNDER SECTION 122.37 MUST STILL
APPLY FOR A PERMIT UNDER THIS SECTION UNLESS AUTHORIZATION BY RULE WAS
FOR THE LIFE OF THE WELL. RULES AUTHORIZING WELL INJECTIONS FOR WHICH
PERMIT APPLICATIONS HAVE BEEN SUBMITTED SHALL LAPSE FOR A PARTICULAR
WELL INJECTION ONLY UPON THE EFFECTIVE DATE OF THE PERMIT OR PERMIT
DENIAL FOR THAT WELL INJECTION.
(B) TIME TO APPLY. ANY PERSON WHO PERFORMS OR PROPOSES AN
UNDERGROUND INJECTION FOR WHICH A PERMIT IS OR WILL BE REQUIRED SHALL
SUBMIT AN APPLICATION TO THE DIRECTOR IN ACCORDANCE WITH THE STATE UIC
PROGRAM AS FOLLOWS:
(1) FOR EXISTING INJECTION WELLS, AS EXPEDITIOUSLY AS PRACTICABLE AND
IN ACCORDANCE WITH THE SCHEDULE CONTAINED IN ANY PROGRAM DESCRIPTION
UNDER SECTION 123.4(G), BUT NO LATER THAN 4 YEARS FROM THE APPROVAL OF
THE UIC PROGRAM, OR AS REQUIRED UNDER SECTION 122.45(B) FOR WELLS
INJECTING HAZARDOUS WASTE.
(2) FOR NEW INJECTION WELLS, EXCEPT NEW WELLS COVERED BY AN EXISTING
AREA PERMIT UNDER SECTION 122.39(C), A REASONABLE TIME BEFORE
CONSTRUCTION IS EXPECTED TO BEGIN. (SEE ALSO SECTION 122.41(B)).
(C) CONTENTS OF UIC APPLICATION. (RESERVED.)
(APPLICABLE TO STATE UIC PROGRAMS, SEE SECTION 123.7.)
(A) THE DIRECTOR MAY ISSUE A PERMIT ON AN AREA BASIS, RATHER THAN FOR
EACH WELL INDIVIDUALLY, PROVIDED THAT THE PERMIT IS FOR INJECTION WELLS;
(1) DESCRIBED AND IDENTIFIED BY LOCATION IN PERMIT APPLICATION(S), IF
THEY ARE EXISTING WELLS.
(2) WITHIN THE SAME WELL FIELD, FACILITY SITE, RESERVOIR, PROJECT, OR
SIMILAR UNIT IN THE SAME STATE;
(3) OF SIMILAR CONSTRUCTION;
(4) OF THE SAME CLASS AS DETERMINED UNDER SECTION 122.32; AND
(5) OPERATED BY A SINGLE OWNER OR OPERATOR.
(B) AREA PERMITS SHALL SPECIFY;
(1) THE AREA WITHIN WHICH UNDERGROUND INJECTIONS ARE AUTHORIZED, AND
(2) THE REQUIREMENTS FOR CONSTRUCTION, MONITORING, REPORTING,
OPERATION, AND ABANDONMENT, FOR ALL WELLS AUTHORIZED BY THE PERMIT.
(C) THE AREA PERMIT MAY AUTHORIZE THE PERMITTEE TO CONSTRUCT AND
OPERATE NEW INJECTION WELLS WITHIN THE PERMIT AREA PROVIDED;
(1) THE PERMITTEE NOTIFIES THE DIRECTOR NO LATER THAN THE DATE ON
WHICH MONITORING REPORTS ARE REQUIRED TO BE SUBMITTED UNDER SECTION
122.7(1)(4), PURSUANT TO A PROCEDURE WHICH SHALL BE SPECIFIED IN THE
PERMIT, WHEN AND WHERE THE NEW WELL HAS BEEN OR WILL BE DRILLED;
(2) THE ADDITIONAL WELL SATISFIES THE CRITERIA IN PARAGRAPH (A) OF
THIS SECTION AND MEETS THE REQUIREMENTS SPECIFIED IN THE PERMIT UNDER
PARAGRPAH (B) OF THIS SECTION; AND
(3) THE CUMULATIVE EFFECTS OF DRILLING AND OPERATION OF ADDITIONAL
INJECTION WELLS ARE CONSIDERED BY THE DIRECTOR DURING EVALUATION OF THE
AREA PERMIT APPLICATION AND ARE ACCEPTABLE TO THE DIRECTOR.
(D) IF THE DIRECTOR DETERMINES THAT ANY WELL CONSTRUCTED PURSUANT TO
PARAGRAPH (C) OF THIS SECTION DOES NOT SATISFY ANY OF THE REQUIREMENTS
OF PARAGRAPHS (C)(1) AND (C)(2) OF THIS SECTION THE DIRECTOR MAY MODIFY
THE PERMIT UNDER SECTION 122.15, TERMINATE UNDER SECTION 122.16, OR TAKE
ENFORCEMENT ACTION. IF THE DIRECTOR DETERINES THAT CUMULATIVE EFFECTS
ARE UNACCPETABLE, THE PERMIT MAY BE MODIFIED UNDER SECTION 122.15.
(A) COVERAGE. NOTWITHSTANDING ANY OTHER PROVISION OF THIS PART OR
PART 124, THE DIRECTOR MAY TEMPORARILY PERMIT A SPECIFIC UNDERGROUND
INJECTION WHICH HAS NOT OTHERWISE BEEN AUTHORIZED BY RULE OR PERMIT IF:
(1) AN IMMINENT AND SBUSTANTIAL ENDANGERMENT TO THE HEALTH OF PERSONS
WILL RESULT UNLESS A TEMPORARY EMERGENCY PERMIT IS GRANTED; OR
(2) A SUBSTANTIAL AND IRRETRIEVABLE LOSS OF OIL OR GAS RESOURCES WILL
OCCUR UNLESS A TEMPORARY EMERGENCY PERMIT IS GRANTED TO A CLASS II WELL;
AND
(I) TIMELY APPLICATION FOR A PERMIT COULD NOT PRACTICABLY HAVE BEEN
MADE; AND
(II) THE INJECTION WILL NOT RESULT IN THE MOVEMENT OF FLUIDS INTO
UNDERGROUND SOURCES OF DRINKING WATER; OR
(3) A SUBSTNATIAL DELAY IN PRODUCTION OF OIL OR GAS RESOURCES WILL
OCCUR UNLESS A TEMPORARY EMERGENCY PERMIT IS GRANTED TO A NEW CLASS II
WELL AND THE TEMPORARY AUTHORIZATION WILL NOT RESULT IN THE MOVEMENT OF
FLUIDS INTO AN UNDERGROUND SOURCE OF DRINKING WATER.
(B) REQUIREMENTS FOR ISSUANCE.(1) ANY TEMPORARY PERMIT UNDER
PARAGRAPH (A)(1) OF THIS SECTION SHALL BE FOR NO LONGER TERM THAN
REQUIRED TO PREVENT THE HAZARD.
(2) ANY TEMPORARY PERMIT UNDER PARAGRPAH (A) (2) OF TIS SECTION SHALL
BE FOR NO LONGER THAN 90 DAYS, EXCEPT THAT IF A PERMIT APPLICATION HAS
BEEN SUBMITTED PRIOR TO THE EXPIRATION OF THE 90-DAY PERIOD, THE
DIRECTOR MAY EXTEND THE TEMPORARY PERMIT UNTIL FINAL ACTION ON THE
APPLICATION.
(3) ANY TEMPORARY PERMIT UNDER PARAGRAPH (A)(3) OF THIS SECTION SHALL
BE ISSUED ONLY AFTER A COMPLETE PERMIT APPLICATION HAS BEEN SUBMITTED
AND SHALL BE EFFECTIVE UNTIL FINAL ACTION ON THE APPLICATION.
(4) NOTICE OF ANY TEMPORARY PERMIT UNDER THIS PARAGRAPH SHALL BE
PUBLISHED IN ACCORDACNE WITH SECTION 124.11 WITHIN 10 DAYS OF THE
ISSUANCE OF THE PERMIT.
(5) THE TEMPORARY PERMIT UNDER THIS SECTION MAY BE EITHER ORAL OR
WRITTEN. IF ORAL IT MUST BE FOLOWED WITHIN 5 CALENDAR DAYS BY A WRITTEN
TEMPORARY EMERGENCY PERMIT.
(6)THE DIRECTOR SHALL CONDITION THE TEMPORARY PERMIT IN ANY MANNER HE
OR SHE DETERMINES IS NECESSARY TO ENSURE THAT THE INJECTION WILL NOT
RESULT IN THE MOVEMENT OF FLUIDS INTO AN UNDERGROUND SOURCE OF DRINKING
WATER.
(APPLICABLE TO STATE UIC PROGRAMS, SEE SECTION 123.7.)
THE FOLLOWING CONDITIONS, IN ADDITION TO THOSE SET FORTH IN SECTION
122.7, APPLY TO ALL UIC PERMITS AND SHALL BE INCORPORATED INTO ALL
PERMITS EITHER EXPRESSLY OR BY REFERENCE. IF INCORPORATED BY REFERENCE,
A SPECIFIC CITATION TO THESE REGULATIONS (OR APPROVED STATE REGULATIONS)
MUST BE GIVEN THE PERMITS.
(A) IN ADDITION TO SECTION 122.7(A) (DUTY TO COMPLY); THE PERMITTEE
NEED NOT COMPLY WITH THE PROVIDIONS OF THIS PERMIT TO THE EXTENT AND FOR
THE DURATION SUCH NONCOM PLIANCE IS AUTHORIZED IN A TEMPORARY EMERGENCY
PERMIT UNDER SECTION 122.40.
(B) IN ADDITION TO SECTION 122.7(J)(2) (MONITORING AND RECORDS); THE
PERMITTEE SHALL RETAIN ALL RECORDS CONCERNING THE NATURE AND COMPOSITION
OF INJECTED FLUIDS UNTIL FIVE YEARS AFTER COMPLETION OF ANY PLUGGING AND
ABANDONMENT PROCEDURES SPECIFIED UNDER SECTION 122.42(F). THE DIRECTOR
MAY REQUIRE THE OWNER OR OPERATOR TO DELIVER THE RECORDS TO THE DIRECTOR
AT THE CONCLUSION OF THE RETENTION PERIOD.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 152 OF 225
COSTLE DM ADMINISTRATOR
EPA
113651
REGULATIONS
(C) IN ADDITION TO SECTION 122.7(1)(1) (NOTICE OF PLANNED CHANGES);
A NEW INJECTION WELL MAY NOT COMMENCE INJECTION UNTIL CONSTRUCTION IS
COMPLETE, AND
(1) THE PERMITTEE HAS SUBMITTED NOTICE OF COMPLETION OF CONSTRUCTION
TO THE DIRECTOR; AND
(2)(1) THE DIRECTOR HAS INSPECTED OR OTHERWISE REVIWED THE NEW
INJECTION WELL AND FINDS IT IS IN COMPLIANCE WITH THE CONDITIONS OF THE
PERMIT; OR
(II) THE PERMITTEE HAS NOT RECEIVED NOTICE FROM THE DIRECTOR OF HIS
OR HER INTENT TO INSPECT OR OTHERWISE REVIEW THE NEW INJECTION WELL
WITHIN 13 DAYS OF THE DATE OF THE NOTICE IN PARAGRAPH (C)(1) OF THIS
SECTION, IN WHICH CASE PRIOR INSPECTION OR REVIEW IS WAIVED AND THE
PERMITTEE MAY COMMENCE INJECTION.
(D) THE FOLLOWING SHALL BE INCLUDED AS INFORMATION WHICH MUST BE
REPORTED WITHIN 24 HOURS UNDER SECTION 122.7(1)(5);
(1) ANY MONITORING OR OTHER INFORMATION WHICH INDICATES THAT ANY
CONTAMINANT MAY CAUSE AN ENDANGERMENT TO A USDW.
(2) ANY NONCOMPLIANCE WITH A PERMIT CONDITION OR MALFUNCTION OF THE
INJECTION SYSTEM WHICH MAY CAUSE FLUID MIGRATION INTO OR BETWEEN USDWS.
(E) THE PERMITTEE SHALL NOTIFY THE DIRECTOR AT LEAST 180 DAYS BEFORE
CONVERSION OR ABANDONMENT OF THE WELL.
(APPLICABLE TO STATE PROGRAMS, SEE SECTION 123.7.)
IN ADDITION TO THE CONDITIONS ESTABLISHED UNDER SECTION 122.8(A),
EACH UIC PERMIT SHALL INCLUDE CONDITIONS MEETING THE FOLLOWING
REQUIREMENTS, WHEN APPLICABLE;
(A) CONSTRUCTION REQUIREMENTS AS SET FORTH IN PART 146. EXISTING
WELLS SHALL ACHIEVE COMPLIANCE WITH SUCH REQUIREMENTS ACCORDING TO A
COMPLIANCE SCHEDULE ESTABLISHED AS A PERMIT CONDITION. THE OWNER OR
OPERATOR OF A PROPOSED NEW INJECTION WELL SHALL ACHIEVE COMPLIANCE WITH
SUCH REQUIREMENTS ACCORDING TO A COMPLIANCE SCHEDULE ESTABLISHED AS A
PERMIT CONDITION. THE OWNER OR OPERATOR OF A PROPOSED NEW INJECTION
WELL SHALL SUBMIT PLANS FOR TESTING, DRILLING, AND CONSTRUCTION AS PART
OF THE PERMIT APPLICATION. EXCEPT AS AUTHORIZED BY AN AREA PERMIT, NO
CONSTRUCTION MAY COMMENCE UNTIL A PERMIT HAS BEEN ISSUED CONTAINING
CONSTRUCTION REQUIREMENTS (SEE SECTION 122.23). NEW WELLS SHALL BE IN
COMPLIANCE WITH THESE REQUIREMENTS PRIOR TO COMMENCING INJECTION
OPERATIONS. CHANGES IN CONSTRUCTION PLANS DURING CONSTRUCTION MAY BE
APPROVED BY THE DIRECTOR AS MINOR MODIFICATIONS (SECTION 122.17). NO
SUCH CHANGES MAY BE PHYSICALLY INCORPORATED INTO CONSTRUCTION OF THE
WELL PRIOR TO APPROVAL OF THE MODIFICATION BY THE DIRECTOR.
(B) CORRECTIVE ACTION AS SET FORTH IN SECTION 122.44 AND SECTION
146.7.
(C) OPERATION REQUIREMENTS AS SET FORTH IN 40 CFR PART 146; THE
PERMIT SHALL ESTABLISH ANY MAXIMUM INJECTION VOLUMES AND/OR PRESSURES
NECESSARY TO ASSURE THAT FRACTURES ARE NOT INITIATED IN THE CONFINING
ZONE, THAT INJECTED FLUIDS DO NOT MIGRATE INTO ANY UNDERGROUND SOURCE OF
DRINKING WATER, THAT FORMATION FLUIDS ARE NOT DISPLACED INTO ANY
UNDERGROUND SOURCE OF DRINKING WATER, AND TO ASSURE COMPLIANCE WITH THE
PART 146 OPERATING REQUIREMENTS.
(D) REQUIREMENTS FOR WELLS MANAGING HAZARDOUS WASTE, AS SET FORTH IN
SECTION 122.45.
(E) MONITORING AND REPORTING REQUIREMENTS AS SET FORTH IN 40 CFR PART
146. THE PERMITTEE SHALL BE REQUIRED TO IDENTIFY TYPES OF TESTS AND
METHODS USED TO GENERATE THE MONITORING DATA.
(F) PLUGGING AND ABANDONMENT. ANY CLASS I, II OR III PERMIT SHALL
INCLUDE, AND ANY CLASS V PERMIT MAY INCLUDE, CONDITIONS TO ENSURE THAT
PLUGGING AND ABANDONMENT OF THE WELL WILL NOT ALLOW THE MOVEMENT OF
FLUIDS EITHER INTO AN UNDERGROUND SOURCE OF DRINKING WATER OR FROM ONE
UNDERGROUND SOURCE OF DRINKING WATER TO ANOTHER. ANY APPLICANT FOR A
UIC PERMIT SHALL BE REQUIRED TO SUBMIT A PLAN FOR PLUGGING AND
ABANDONMENT. WHERE THE PLAN MEETS THE REQUIREMENTS OF THIS PARAGRAPH,
THE DIRECTOR SHALL REQUIRE THE APPLICANT TO REVISE THE PLAN, PRESCRIBE
CONDITIONS MEETING THE REQUIREMENTS OF THIS PARAGRAPH, TEMPORARY
INTERMITTENT CESSATION OF INJECTION OPERATIONS IS NOT ABANDONMENT.
(G) FINANCIAL RESPONSIBLITY. THE PERMIT SHALL REQUIRE THE PERMITTEE
TO MAINTAIN FINANCIAL RESPONSIBILITY AND RESOURCES, IN THE FORM OF
PERFORMANCE BONDS OR OTHER EQUIVALENT FORM OF FINANCIAL ASSURANCE
APPROVED BY THE DIRECTOR, TO CLOSE, PLUG, AND ABANDON THE UNDERGROUND
INJECTION OPERATION IN A MANNER PRESCRIBED BY THE DIRECTOR. IN LIEU OF
INDIVIDUAL PERFORMANCE BONDS, OPERATORS MAY FURNISH A BOND OR OTHER
EQUIVALENT FORM OF FINANCIAL GUARANTEE APPROVED BY THE DIRECTOR COVERING
ALL INJECTION WELLS IN ANY ONE STATE.
(H) MECHANICAL INTEGRITY. A PERMIT FOR ANY CLASS I, II, OR III WELL
OR INJECTION PROJECT WHICH LACKS MECHANICAL INTEGRITY SHALL INCLUDE, AND
FOR ANY CLASS V WELL MAY INCLUDE, A CONDITION PROHIBITING INJECTION
OPERATIONS UNTIL THE PERMITTEE SHOWS TO THE SATISFACTION OF THE DIRECTOR
UNDER SECTION 146.08 THAT THE WELL HAS MECHANICAL INTEGRITY.
(I) ADDITIONAL CONDTIONS. THE DIRECTOR SHALL IMPOSE ON A
CASE-BY-CASE BASIS SUCH ADDITIONAL CONDITIONS AS ARE NECESSARY TO
PREVENT THE MIGRATION OF FLUIDS INTO UNDERGROUND SOURCES OF DRINKING
WATER.
(A) WHEN INJECTION DOES NOT OCCUR INTO, THROUGH, OR ABOVE AN
UNDERGROUND SOURCE OF DRINKING WATER, THE DIRECTOR MAY AUTHORIZE A WELL
WITH LESS STRINGENT REQUIREMENTS FOR AREA OF REVIEW, CONSTRUCTION,
MECHANICAL INTEGRITY, OPERATION, MONITORING, AND OPERATION, MONITORING
AND REPORTING THAN REQUIRED IN 40 CFR 146 OR SECTION 122.42 TO THE
EXTENT THAT THE REDUCTION IN REQUIREMENTS WILL NOT RESULT IN AN
INCREASED RISK OF MOVEMENT OF FLUIDS INTO AN UNDERGROUND SOURCE OF
DRINKING WATER.
(B) WHEN INJECTION OCCURS INTO, THROUGH, OR ABOVE AN UNDERGROUND
SOURCE OF DRINKING WATER, BUT THE RADIUS OF ENDANGERING INFLUENCE WHEN
COMPUTED UNDER SECTION 146.06(C) IS A NEGATIVE NUMBER, THE DIRECTOR MAY
AUTHORIZE A WELL WITH LESS STRINGENT REQUIREMENTS FOR OPERATION,
MONITORING, AND REPORTING THAN REQUIRED IN 40 CFR 146 OR SECTION 122.42
TO THE EXTENT THAT THE REDUCTION IN REQUIREMENTS WILL NOT RESULT IN AN
INCREASED RISK OF MOVEMENT OF FLUIDS INTO AN UNDERGROUND SOURCE OF
DRINKING WATER.
(C) WHEN REDUCING REQUIREMENTS UNDDER PARAGRAPH (A) OR (B) OF THIS
SECTION, THE DIRECTOR SHALL PREPARE A FACT SHEET UNDER SECTION 124.9 (OR
EQUIVALENT DOCUMENT UNDER STATE PROCEDURES) EXPLAINING THE REASONS FOR
THE ACTION.
(APPLICABLE TO STATE UCI PROGRAMS, SEE SECTION 123.7.)
(A) COVERAGE. APPLICANTS FOR CLASS I, II (OTHER THAN EXISTING), OR
III INJECTION WELL PERMITS SHALL IDENTIFY THE LOCATION OF ALL KNOWN
WELLS WITHIN THE INJECTION WELL'S AREA OF REVIEW WHICH PENETRATES THE
INJECTION ZONE. FOR SUCH WELLS WHICH ARE IMPROPERLY SEALED, COMPLETED,
OR ABANDONED, THE APPLICANT SHALL ALSO SUBMIT A PLAN CONSISTING OF SUCH
STEPS OR MODIFICATIONS AS ARE NECESSARY TO PREVENT MOVEMENT OF FLUID
INTO UNDERGROUND SOURCES OF DRINKING WATER ("CORRECTIVE ACTION"). WHERE
THE PLAN IS ADEQUATE, THE DIRECTOR SHALL INCORPORATE IT INTO THE PERMIT
AS A CONDITION. WHERE THE DIRECTOR'S REVIEW OF AN APPLICATION INDICATES
THAT THE PERMITTEE'S PLAN IS INADEQUATE (BASED ON THE FACTORS IN SECTION
146.07) THE DIRECTOR SHALL REQUIRE THE APPLICANT TO REVISE THE PLAN,
PRESCRIBE A PLAN FOR CORRECTIVE ACTION AS A CONDITION OF THE PERMIT
UNDER PARAGRAPH (B) OF THIS SECTION, OR DENY THE APPLICATION. THE
DIRECTOR MAY DISREGARD THE PROVISIONS OF SECTION 146.06 (AREA OF REVIEW)
AND SECTION 146.07 (CORRECTIVE ACTION) WHEN REVIEWING AN APPLICATION TO
PERMIT AN EXISTING CLASS II WELL.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 153 OF 225
COSTLE DM ADMINISTRATOR
EPA
113652
REGULATIONS
(B) REQUIREMENTS -- (1) EXISTING INJECTION WELLS. ANY PERMIT ISSUED
FOR AN EXISTING INJECTION WELL (OTHER THAN CLASS II) REQUIRING
CORRECTIVE ACTION SHALL INCLUDE A COMPLIANCE SCHEDULE REQUIRING ANY
CORRECTIVE ACTION ACCEPTED OR PRESCRIBED UNDER PARAGRAPH (A) OF THIS
SECTION TO BE COMPLETED AS SOON AS POSSIBLE.
(2) NEW INJECTION WELLS. NO PERMIT FOR A NEW INJECTION WELL MAY
AUTHORIZE INJECTION UNTIL ALL REQUIRED CORRECTIVE ACTION HAS BEEN TAKEN.
(3) INJECTION PRESSURE LIMITATION. THE DIRECTOR MAY REQUIRE AS A
PERMIT CONDITION THAT INJECTION PRESSURE BE SO LIMITED THAT PRESSURE IN
THE INJECTION ZONE DOESNOT EXCEED HYDROSTATIC PRESSURE AT THE SITE OF
ANY IMPROPERLY COMPLETED OR ABANDONDED WELL WITHIN THE AREA OF REVIEW.
THIS PRESSURE LIMITATION SHALL SATISFY THE CORRECTIVE ACTION
REQUIREMENT. ALTERNATIVELY, SUCH INJECTION PRESSURE LIMITATION CAN BE
PART OF A COMPLIANCE SCHEDULE AND LAST UNTIL ALL OTHER REQUIRED
CORRECTIVE ACTION HAS BEEN TAKEN.
(APPLICABLE TO STATE UIC PROGRAMS, SEE SECTION 123.7.)
(A) APPLICABILITY. THE REGULATIONS IN THIS SECTION APPLY TO ALL
GENERATORS OF HAZARDOUS WASTE, AND TO THE OWNERS OR OPERATORS OF ALL
HAZARDOUS WASTE MANAGEMENT FACILITIES, USING ANY CLASS OF WELL TO INJECT
HAZARDOUS WASTES ACCOMPANIED BY A MANIFEST. (SEE ALSO SECTION 122.36.)
(B) AUTHORIZATION. THE OWNER OR OPERATOR OF ANY WELL THAT IS USED TO
INJECT HAZARDOUS WASTES ACCOMPANIED BY A MANIFEST OR DELIVERY DOCUMENT
SHALL APPLY FOR AUTHORIZATION TO INJECT AS SPECIFIED IN SECTION 122.38
WITHIN 6 MONTHS AFTER THE APPROVAL OF AN APPLICABLE STATE PROGRAM.
(C) REQUIREMENTS. IN ADDITION TO REQUIRING COMPLIANCE WITH THE
APPLICABLE REQUIREMENTS OF THIS PART AND 40 CFR PART 146, SUBPARTS B-F,
THE DIRECTOR SHALL, FOR EACH FACILITY MEETING THE REQUIREMENTS OF
PARAGRAPH (B) OF THIS SECTION, REQUIRE THAT THE OWNER OR OPERATOR COMPLY
WITH THE FOLLOWING:
(1) NOTIFICATION. THE OWNER OR OPERATOR SHALL COMPLY WITH THE
NOTIFICATION REQUIREMENTS OF SECTION 3010 OF PUB. L. 94-580.
(2) IDENTIFICATION NUMBER. THE OWENR OR OPERATOR SHALL COMPLY WITH
THE REQUIREMENTS OF 40 CFR SECTION 264.11.
(3) MANIFEST SYSTEM. THE OWNER OR OPERATOR SHALL COMPLY WITH THE
APPLICABLE RECORDKEEPING AND REPORTING REQUIREMENTS FOR MANIFESTED
WASTES IN 40 CFR SECTION 264.71.
(4) MANIFEST DISCREPANCIES. THE OWNER OR OPERATOR SHALL COMPLY WITH
40 CFR SECTION 264.72.
(5) OPERATING RECORD. THE OWNER OR OPERATOR SHALL COMPANY WITH 40
CFR SECTION 264.73(A), (B)(1), AND (B)(2).
(6) ANNUAL REPORT. THE OWNER OR OPERATOR SHALL COMPLY WITH 40 CFR
SECTION 264.75.
(7) UNMANIFESTED WASTE REPORT. THE OWNER OR OPERATOR SHALL COMPLY
WITH 40 CFR SECTION 264.75.
(8) PERSONNEL TRAINING. THE OWNER OR OPERATOR SHALL COMPLY WITH THE
APPLICABLE PERSONNEL TRAINING REQUIREMENTS OF 40 CFR SECTION 264.16.
(9) CERTIFICATION OF CLOSURE. WHEN ABANDONMENT IS COMPLETED, THE
OWNER OR OPERATOR MUST SUBMIT TO THE DIRECTOR CERTIFICATION BY THE OWNER
OR OPERATOR AND CERTIFICATION BY AN INDEPENDENT REGISTERED PROFESSIONAL
ENGINEER THAT THE FACILITY HAS BEEN CLOSED IN ACCORDANCE WITH THE
SPECIFICATIONS IN SECTION 122.42(F).
(D) ADDITIONAL REQUIREMENTS FOR CLASS IV WELLS. (RESERVED).
(A) CONTENT OF SUBPART D. THE REGULATIONS IN THIS SUBPART CONTAIN
THE SPECIFIC REQUIREMENTS FOR THE NPDES PERMIT PROGRAM. THEY APPLY TO
EPA, AND TO APPROVED STATES TO THE EXTENT SET FORTH IN PART 123.
SECTIONS OF THIS SUBPART WHICH ARE APPLICABLE TO STATES ARE INDICATED AT
THE SECTION HEADING AS FOLLOWS: (APPLICABLE TO STATE NPDES PROGRAMS,
SEE SECTION 123.7). THE REGULATIONS IN THIS SUBPART ARE SUPPLEMENTAL TO
THE REQUIREMENTS IN PART 122, SUBPART A, WHICH APPLY TO ALL PROGRAMS.
(B) AUTHORITY. (1) SECTION 301(A) OF CWA PROVIDES THAT "EXCEPT AS IN
COMPLIANCE WITH THIS SECTION AND SECTONS 302, 306, 307, 318, 402, AND
404 OF THIS ACT, THE DISCHARGE OF ANY POLLUTANT BY ANY PERSON SHALL BE
UNLAWFUL."
(2) SECTION 402(A)(1) OF CWA PROVIDES IN PART THAT "THE ADMINISTRATOR
MAY, AFTER OPPORTUNITY FOR PUBLIC HEARING, ISSUE A PERMIT FOR THE
DISCHARGE OF ANY POLLUTANT, OR COMBINATION OF POLLUTANTS, . . . UPON
CONDITION THAT SUCH DISCHARGE WILL MEET EITHER ALL APPLICABLE
REQUIREMENTS UNDER SECTIONS 301, 302, 306, 307, 308, AND 403 OF THIS
ACT, OR PRIOR TO THE TAKING OF NECESSARY IMPLEMENTING ACTIONS RELATING
TO ALL SUCH REQUIREMENTS, SUCH CONDITIONS AS THE ADMINISTRATOR
DETERMINES ARE NECESSARY TO CARRY OUT THE PROVISIONS OF THIS ACT."
(3) SECTION 318(A) OF CWA PROVIDES THAT "THE ADMINISTRATOR IS
AUTHORIZED, AFTER PUBLIC HEARINGS, TO PERMIT THE DISCHARGE OF SPECIFIC
POLLUTANT OR POLLUTANTS UNDER CONTROLLED CONDITIONS ASSOCIATED WITH AN
APPROVED AQUACULTURE PROJECT UNDER FEDERAL OR STATE SUPERVISION PURSUANT
TO SECTION 402 OF THIS ACT."
(4) SECTION 405 OF CWA PROVIDES, IN PART, THAT "WHERE THE DISPOSAL OF
SEWAGE SLUDGE RESULTING FROM THE OPERATION OF A TREATMENT WORKS AS
DEFINED IN SECTION 212 OF THIS ACT (INCLUDING THE REMOVAL OF IN-PLACE
SEWAGE SLUDGE FROM ONE LOCATION AND ITS DEPOSIT AT ANOTHER LOCATION)
WOULD RESULT IN ANY POLLUTANT FROM SUCH SEWAGE SLUDGE ENTERING THE
NAVIGABLE WATERS, SUCH DISPOSAL IS PROHIBITED EXCEPT IN ACCORACNE WITH A
PERMIT ISSUED BY THE ADMINISTRATOR UNDER SECTION 402 OF THIS ACT."
(5) SECTIONS 402(B), 318(B) AND (C), AND 405(C) OF CWA AUTHORIZE EPA
APPROVAL OF STATE PERMIT PROGRAMS FOR DISCHARGES FROM POINT SOURCES,
DISCHARGES TO AQUACULTURE PROJECTS, AND DISPOSAL OF SEWAGE SLUDGE.
(6) SECTION 304(I) OF CWA PROVIDES THAT THE ADMINISTRATOR SHALL
PROMULGATE GUIDELINES ESTABLISHING UNIFORM APPLICATION FORMS AND OTHER
MINIMUM REQUIREMENTS FOR THE ACQUISITION OF INFORMATION FROM DISCHARGERS
IN APPROVED STATES AND ESTABLISHING MINIMUM PROCEDURAL AND OTHER
ELEMENTS OF APPROVED STATE NPDES PROGRAMS.
(7) SECTION 503(A) OF CWA PROVIDES THAT "THE ADMINISTRATOR IS
AUTHORIZED TO PRESCRIBE SUCH REGULATIONS AS ARE NECESSARY TO CARRY OUT
HIS FUNCTIONS UNDER THIS ACT."
(8) SECTION 101(E) OF CWA PROVIDES THAT "PUBLIC PARTICIPATION IN THE
DEVELOPMENT, REVISION, AND ENFORCEMENT OF ANY REGULATION, STANDARD,
EFFLUENT LIMITATION, PLAN, OR PROGRAM ESTABLISHED BY THE ADMINISTRATOR
OR ANY STATE UNDER THIS ACT SHALL BE PROVIDED FOR, ENCOURAGED, AND
ASSISTED BY THE ADMINISTRATOR AND THE STATES. THE ADMINISTRATOR, IN
COOPERATION WITH THE STATES, SHALL DEVELOP AND PUBLISH REGULATIONS
SPECIFYING MINIMUM GUIDELINES FOR PUBLIC PARTICIPATION IN SUCH
PROCESSES."
(C) SCOPE OF THE NPDES PERMIT REQUIREMENT. THE NPDES PROGRAM
REQUIRED PERMITS FOR THE DISCHARGE OF "POLLUTANTS" FROM ANY "POINT
SOURCE" INTO "WATERS OF THE UNITED STATES." THE TERMS "POLLUTANT,"
"POINT SOURCE" AND "WATERS OF THE UNITED STATES" ARE DEFINED IN SECTION
122.3.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 154 OF 225
COSTLE DM ADMINISTRATOR
EPA
113653
REGULATIONS
(1) SPECIFIC INCLUSIONS. THE FOLLOWING ARE POINT SOURCES REQUIRING
NPDES PERMITS FOR DISHCARGES;
(I) CONCENTRATED ANIMAL FEEDING OPERATIONS AS DEFINED IN SECTION
122.54;
(II) CONCENTRATED AQUATIC ANIMAL PRODUCTION FACILITIES AS DEFINED IN
SECTION 122.55;
(III) DISCHARGES FROM SEPARATE STORM SEWERS AS SET FORTH IN SECTION
122.57; AND
(V) SILVICULTURAL POINT SOURCES AS DEFINED IN SECTION 122.58.
(2) SPECIFIC EXCLUSIONS. THE FOLLOWING DISCHARGES DO NOT REQUIRE
NPDES PERMITS;
(I) ANY DISCHARGE OF SEWAGE FROM VESSELS, EFFLUENT FROM PROPERLY
FUNCTIONING MARINE ENGINES, LAUNDRY, SHOWER, AND GALLEY SINK WASTES, OR
ANY OTHER DISCHARGE INCIDENTAL TO THE NORMAL OPERATION OF A VESSEL.
THIS EXCLUSION DOES NOT APPLY TO RUBBISH, TRASH, GARBAGE, OR OTHER SUCH
MATERIALS DISCHARGED OVERBOARD; NOR TO OTHER DISCHARGES WHEN THE VESSEL
IS OPERATING IN A CAPACITY OTHER THAN AS A MEANS OF TRANSPORTATION SUCH
AS WHEN USED AS AN ENERGY OR MINING FACILITY, A STORAGE FACILITY OR A
SEAFOOD PROCESSING FACILITY, OR WHEN SECURED TO THE BED OF THE OCEAN,
CONTIGUOUS ZONE OF WATERS OF THE UNITED STATES FOR THE PURPOSE OF
MINERAL OR OIL EXPLORATION OR DEVELOPMENT.
(II) DISCHARGES OF DREDGED OR FILL MATERIAL INTO WATERS OF THE UNITED
STATES WHICH ARE REGULATED UNDER SECTION 404 OF CWA.
(III) THE INTRODUCTION OF SEWAGE, INDUSTRIAL WASTES, OR OTHER
POLLUTANTS INTO PUBLICLY OWNED TREATMENT WORKS BY INDIRECT DISCHARGERS.
PLANS OR AGREEMENTS TO SWITCH TO THIS METHOD OF DISPOSAL IN THE FUTURE
DO NOT RELIEVE DISCHARGERS OF THE OBLIGATION TO HAVE AND COMPLY WITH
PERMITS UNTIL ALL DISCHARGES OF POLLUTANTS TO WATERS OF THE UNITED
STATES ARE ELIMINATED. (SEE ALSO SECTION 122.10(C).) THIS EXCLUSION
DOES NOT APPLY TO THE INTRODUCTION OF POLLUTANTS TO PRIVATELY OWNED
TREATMENT WORKS OR TO OTHER DISCHARGES THROUGH PIPES, SEWERS, OR TOERH
CONVEYANCES OWNED BY A STATE, MUNICIPALITY, OR OTHER PARTY NOT LEADING
TO TREATMENT WORKS.
(IV) ANY DISCHARGE IN COMPLIANCE WITH THE INSTRUCTIONS OF AN ON-SCENE
COORDINATOR PURSUANT TO 40 CFR SECTION 1510 (THE NATIONAL OIL AND
HAZARDOUS SUBSTANCES POLLUTION PLAN) OR 33 CFR SECTION 153.10(E)
(POLLUTION BY OIL AND HAZARDOUS SUBSTANCES).
(V) ANY INTRODUCTION OF POLLUTANTS FROM NON-POINT-SOURCE AGRICULTURAL
AND SILVICULTURAL ACTIVITIES, INCLUDING RUNOFF FROM ORCHARDS, CULTIVATED
CROPS, PASTURES, RANGE LANDS, AND FOREST LANDS, BUT NO DISCHARGES FROM
CONCENTRATED ANIMAL FEEDING OPERATIONS AS DEFINED IN SECTION 122.54,
DISCHARGES FROM CONCENTRATED AQUATIC ANIMAL PRODUCTION FACILITIES AS
DEFINED IN SECTION12.55, DISHCARGES TO AQUACULTURE PROJECTS AS DEFINED
IN SECTION 122.56, AND DISCHARGES FROM SILVICUTURAL POINT SOURCES AS
DEFINED IN SECTION 122.56.
(VI) RETURN FLOWS FROM IRRIGATED AGRICULTURE.
(VII) DISCHARGES INTO A PRIVATELY OWNED TREATMENT WORKS, EXCEPT AS
THE DIRECTOR MAY OTHERWISE REQUIRE UNDER SECTION 122.62(M).
(APPLICABLE TO STATE NPDES PROGRAMS, SEE SECTION 123.7.)
NO PERMIT MAY BE ISSUED;
(A) WHEN THE CONDITIONS OF THE PERMIT DO NOT PROVIDE FOR COMPLIANCE
WITH THE APPLICABLE REQUIREMENTS OF CWA, OR REGULATIONS PROMULGATED
UNDER CWA;
(B) WHEN THE APPLICANT IS REQUIRED TO OBTAIN A STATE OR OTHER
APPROPRIATE CERTIFICATION UNDER SECTION 401 OF CWA AND SECTION 124.53
AND THAT CERTIFICATION HAS NOT BEEN OBTAINED OR WAIVED;
(C) BY THE STATE DIRECTOR WHERE THE REGIONAL ADMINISTRATOR HAS
OBJECTED TO ISSUANCE OF THE PERMIT UNDER SECTION 123.76;
(D) WHEN THE IMPOSITION OF CONDITIONS CANNOT ENSURE COMPLIANCE WITH
THE APPLICABLE WATER QUALITY REQUIREMENTS OF ALL AFFECTED STATES;
(E) WHEN, IN THE JUDMENT OF THE SECRETARY, ANCHORAGE AND NAVIGATION
IN OR ON ANY OF THE WATERS OF THE UNITED STATES WOULD BE SUBSTANTIALLY
IMPAIRED BY THE DISCHARGE;
(F) FOR THE DISCHARGE OF ANY READIOLOGICAL, CHEMICAL, OR BIOLOGICAL
WARFARE AGENT OR HIGH-LEVEL RADIOACTIVE WASTE;
(G) FOR ANY DISCHARGE INCONSISTENT WITH A PLAN OR PLAN AMENDMENT
APPROVED UNDER SECTION 208(B) OF CWA.
(H) FOR ANY DISCHARGE TO THE TERRITORIAL SEA, THE WATERS OF THE
CONTIGUOUS ZONE, OR THE OCEANS IN THE FOLLOWING CIRCUMSTANCES.
(1) BEFORE THE PROMULGATION OF GUIDELINES UNDER SECTION 403(C) OF CWA
(FOR DETERMINING DEGRADATION OF THE WATERS OF THE TERRITORIAL SEAS, THE
CONTIGOUS ZONE, AND THE OCEANS) UNLESS THE DIRECTOR DETERMINES PERMIT
ISSUANCE TO BE IN THE PUBLIC INTEREST; OR
(2) AFTER PROMULGATION OF GUIDELINES UNDER SECTION 403(C) OF CWA,
WHEN INSUFFICIENT INFORMATION EXISTS TO MADE A REASONABLE JUDGMENT
WHETHER THE DISCHARGE COMPLIES WITH THEM.
I) TO A NEW SOURCE OR A NEW DISCHARGER, IF THE DISCHARGE FROM ITS
CONSTRUCTION OR OPERATION WILL CAUSE OR CONTRIBUTE TO THE VIOLATION OF
WATER QUALITY STANDARDS. THE OWNER OR OPERATOR OF A NEW SOURCE OR NEW
DISCHARGER PROPOSING TO DISCHARGE INTO A WATER SEGMENT WHICH DOES NOT
MEET APPLICABLE WATER QUALITY STANDARDS EVEN AFTER THE APPLICATION OF
THE EFFLUENT LIMITATIONS REQUIRED BY SECTION 301(B)(1)(A) AND
301(B)(1)(B) OF CWA, AND FOR WHICH THE STATE OR INTERSTATE AGENCY HAS
PERFORMED A POLLUTANT LOAD ALLOCATION FOR THE POLLUTANTS TO BE
DISCHARGED, MUST DEMONSTRATE, BEOFRE THE CLOSE OF THE PUBLIC COMMENT
PERIOD, THAT:
(1) THERE ARE SUFFICIENT REMAINING POLLUTANT LOAD ALLOACTION TO ALLOW
FOR THE DISCHARGE; AND
(2) THE EXISTING DISCHARGERS INTO THAT SEGMENT ARE SUBJECT TO
COMPLIANCE SCHEDULES DESIGNED TO BRING THE SEGMENT INTO COMPLIANCE WITH
APPLICABLE WATER QUALITY STANDARDS.
(APPLICABLE TO STATE NPDES PROGRAMS EXCEPT FOR PARAGRAPHS (B), (C)
AND (H); SEE SECTION123.7.)
(A) DUTY TO APPLY. ANY PERSON WHO DISCHARGES OR PROPOSES TO
DISCHARGE POLLUTANTS AND WHO DOES NOT HAVE AN EFFECTIVE PERMIT, EXCEPT
PERSONS COVERED BY GENERAL PERMITS UNDDER SECTION 122.59, EXCLUDED UNDER
SECTION 122.51, OR A USER OF A PRIVATELY OWNED TREATMENT WORKS UNLESS
THE DIRECTOR REQUIRES OTHEWISE UNDER SECTION 122.62(M), SHALL SUBMIT A
COMPLETE APPLICATION (WHICH SHALL INCLUDE A BMP PROGRAM IF NECESSARY
UNDER 40 CFR SECTION 125.102) TO THE DIRECTOR IN ACCORDANCE WITH SECTION
122.4, PARAGRAPH ( ) THROUGH (H) OF THIS SECTION, AND PART 124.
(B) TIME TO APPLY. ANY PERSON PROPOSING A NEW DISCHARGE SHALL SUBMIT
AN APPLICATION AT LEAST 180 DAYS BEFORE THE DATE ON WHICH THE DISCHARGE
IS TO COMMENCE, UNLESS PERMISSION FOR A LATER DATE HAS BEEN GRANTED BY
THE DIRECTOR. PERSONS PROPOSING A NEW DISCHARGE ARE ENCOURAGED TO
SUBMIT THEIR APPLICATIONS WELL IN ADVANCE OF THE 180 DAY REQUIREMENT TO
AVOID DELAY. SEE ALSO PARAGRAPH (H).
(C) DUTY TO REAPPLY. (1) ANY POTW WITH A CURRENTLY EFFECTIVE PERMIT
SHALL SUBMIT A NEW APPLICATION AT LEAST 180 DAYS BEFORE THE EXPIRATION
DATE OF THE EXISTING PERMIT, UNLESS PERMISSION FOR A LATER DATE HAS BEEN
GRANTED BY THE DIRECTOR. (THE DIRECTOR SHALL NOT GRANT PERMISSION FOR
APPLICATIONS TO BE SUBMITTED LATER THAN THE EXPIRATION DATE OF THE
EXISTING PERMIT.)
(2) ALL OTHER PERMITTEES WITH CURRENTLY EFFECTIVE PERMITS SHALL
SUBMIT A NEW APPLICATION IN ACCORDACNE WITH THE TABLE BELOW:
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 155 OF 225
COSTLE DM ADMINISTRATOR
EPA
113654
REGULATIONS
(D) APPLICATION REQUIREMENTS FOR EXISTING MANUFACTURING, COMMERCIAL,
MINING, AND SILVICULTRUAL DISCHARGERS. EXISTING MANUFACTURING,
COMMERCIAL, MINING, AND SILVICULTRUAL DISCHARGERS APPLYING FOR NPDES
PERMITS SHALL PROVIDE THE FOLLOWING INFORMATION TO THE DIRECTOR, USING
APPLICATION FORMS PROVIDED BY THE DIRECTOR:
(1) OUTFALL LOCATION. THE LATITUDE AND LONGITUDE TO THE NEAREST 15
SECONDS AND THE NAME OF THE RECEIVING WATER.
(2) LINE DRAWING. A LINE DRAWING OF THE WATER FLOW THROUGH THE
FACILITY WITH A WATER BALANCE, SHOWING OPERATIONS CONTRIBUTING
WASTEWATER TO THE EFFLUENT AND TREATMENT UNITS, SIMILAR PROCESSES,
OPERATIONS, OR PRODUCTION AREAS MAY BE INDICATED AS A SINGLE UNIT,
LABELED TO CORRESPOND TO THE MORE DETAILED IDENTIFICATION UNDER
PARAGRAPH (D)(3) OF THIS SECTION. THE WATER BALANCE MUST SHOW
APPROXIMATE AVERAGE FLOWS AT INTAKE AND DISCHARGE POINTS AND BETWEEN
UNITS, INCLUDING TREATMENT UNITS. IF A WATER BALANCE CANNOT BE
DETERMINED (FOR EXAMPLE, FOR CERTAIN MINING ACTIVITIES), THE APPLICANT
MAY PROVIDE INSTEAD A PICTORIAL DESCRIPTION OF THE NATURE AND AMOUNT OF
ANY SOURCES OF WATERAND ANY COLLECTION AND TREATMENT MEASURES.
(3) AVERAGE FLOWS AND TREATMENT. A NARRATIVE IDENTIFICATION OF EACH
TYPE OF PROCESS, OPERATION, OR PRODUCTION AREA WHICH CONTRIBUTES
WASTEWATER TO THE EFFLUENT FOR EACH OUTFALL, INCLUDING PROCESS
WASTEWATER, COOLING WATER, AND STORM WATER RUNOFF; THE AVERAGE FLOW
WHIC EACH PROCESS CONTRIBUTES; AND A DESCRIPTION OF THE TREATMENT THE
WASTE WATER RECEIVES, INCLUDING THE ULTIMATE DISPOSAL OF ANY SOLID OR
FLUID WASTES OTHER THAN BY DISCHARGE. PROCESSES, OPERATIONS OR
PRODUCTION AREAS MAY BE DESCRIBED IN GENERAL TERMS (FOR EXAMPLE,
"DY-MAKING REACTOR" "DISTILLATION TOWER".) FOR A PRIVATELY OWNED
TREATMENT WORKS, THIS INFORMATION SALL INCLUDE THE IDENTITY OF EACH USER
OF THE TREATMENT WORKS.
(4) INTERMITTENT FLOWS. IF ANY OF THE DISCHARGES DESCRIBED IN
PARAGRAPH (D)(3) OF THIS SECTION ARE INTERMITTENT OR SEASONAL, A
DESCRIPTION OF THE FREQUENCY, DURATION AND FLOW RATE OF EACH DISCHARGE
OCCURRENCE (EXCEPT FOR STORM WATER RUNOFF, SPILLAGE, OR LEAKS).
(5) MAXIMUM PRODUCTION. IF AN EFFLUENT GUIDELINE PROMULGATED UNDER
SECTION 304 OF CWA APPLIES TO THE APPLICANT AND IS EXPRESSED IN TERMS OF
PRODUCTION (OR OTHER MEASURE OF OPERATION), A REASONABLE MEASURE OF THE
APPLICANT'S ACTUAL PRODUCTION REPORTED IN THE UNITS USED IN THE
APPLICABLE EFFLUENT GUIDELINE. THE REPORTED MEASURE MUST REFLECT THE
ACTUAL PRODUCTION OF THE FACILITY AS REQUIRES BY SECTION 122.63(B)(2).
(6) IMPROVEMENTS. IF THE APPLICANT IS SUBJECT TO ANY PRESENT
REQUIREMENTS OR COMPLIANCE SCHEDULES FOR CONSTRUCTION, UPGRADING OR
OPERATION OF WASTE TREATMENT EQUIPMENT, AN IDENTIFICATION OF THE
ABATEMENT REQUIREMENT, A DESCRIPTION OF THE ABATEMENT PROJECT, AND A
LISTING OF THE REQUIRED AND PROJECTED FINAL COMPLIANCE DATES.
(7) EFFLUENT CHARACTERISTICS. INFORMATION ON THE DISCHARGE OF
POLLUTANTS SPECIFIED IN THIS SUBPARAGRAPH. WHEN "QUANTITATIVE DATA" FOR
A POLLUTANT IS REQUIRED, THE APPLICANT MUST COLLECT A SAMPLE OF EFFLUENT
AND ANALYZE IT FOR THE POLLUTANT IN ACCORDANCE WITH ANALYTICAL METHODS
APPROVED UNDER 40 CFR PART 136. WHEN NO ANALYTICAL METHODS IS APPROVED
THE APPLICANT MAY USE ANY SUITABLE METHODS BUT MUST PROVIDE A
-ESCRIPTION OF THE METHOD. WHEN AN APPLICANT HAS TWO OR MORE OUTFALLS
WITH SUBSTANTIALLY IDENTICAL EFFLUENTS, THE DIRECTOR MAY ALLOW THE
APPLICANT TO TEST ONLY ONE OUTFALL AND REPORT THAT THE QUANTITATIVE DATA
ALSO APPLIES TO THE QUANTITATIVE DATA ALSO APPLIES TO THE SUBSTANTIALLY
IDENTICAL OUTFALLS. THE REQUIREMENTS IN PARAGRAPHS (D)(7)(III) AND (IV)
OF THIS SECTION THAT AN APPLICANT MUST PROVIDE QUANTITATIVE DATA FOR
CERTAIN POLLUTANTS KNOWN OR BELIEVED TO BE PRESENT DOES NOT APPLY TO
POLLUTANTS PRESENT IN A DISCHARGE SOLELY AS THE RESULT OF THEIR PRESENCE
IN INTAKE WATER; HOWEVER, AN APPLICANT MUST REPORT SUCH POLLUTANTS AS
PRESENT. GRAB SAMPLES MUST BE USED FOR PH, TEMPERATURE, CYANIDE, TOTAL
PHENOLS, RESIDUAL CHLORIE, OIL AND GREASE, AND FECAL COLIFORM. FOR ALL
OTHER POLLUTANTS, 24 HOUR COMPOSITE SAMPLE MUST BE USED. AN APPLICANT IS
EXPECTED TO "KNOW OR HAVE REASON TO BELIEVE" THAT A POLLUTANT IS PRESENT
IN AN EFFLUENT BASED ON AN EVALUATION OF THE EXPECTED USE, PRODUCTION,
OR STORAGE OF THE POLLUTANT, OR ON ANY PREVIOUS ANALYSES FOR THE
POLLUTANT. (FOR EXAMPLE, ANY PESTICIDE MANUFACTURED BY A FACILITY MAY
BE EXPECTED TO 0E PRESENT IN CONTAMINATED STORM WATER RUNOFF FROM THE
FACILITY.)
(I)(A) EVERY APPLICANT MUST REPORT QUANTITATIVE DATA FOR EVERY
OUTFALL FOR THE FOLLOWING POLLUTANTS:
(1) BIOCHEMICAL OXYGEN DEMAND (BOD 5)
(2) CHEMICAL OXYGEN DEMAND
(3) TOTAL SUSPENDED SOLIDS
(5) AMMONIA (AS N)
(6) TEMPERATURE (BOT WINTER AND SUMMER)
(7) PH
(B) AT THE APPLICANT'S REQUEST, THE DIRECTOR MAY WAIVE THE REPORTING
REQUIREMENTS FOR ONE OR MORE OF THE POLLUTANTS LISTED IN PARAGRAPH
(D)(7)(I)(A) OF THIS SECTION.
(II) EACH APPLICANT WITH PROCESSES IN ONE OR MORE PRIMARY INDUSTRY
CATEGORY (SEE APPENDIX A TO PART 122) CONTRIBUTING TO A DISCHARGE MUST
REPORT QUANTITATIVE DATA FOR THE FOLLOWING POLLUTANTS IN EACH OUTFALL
CONTAINING PROCESS WASTEWATER:
(A) THE ORGANIC TOXIC POLLUTANTS IN THE FRACTIONS DESIGNATED IN TABLE
1 OF APPENDIX D FOR THE APPLICANT'S INDUSTRIAL CATEGORY OR CATEGORIES
UNLESS THE APPLICANT QUALIFIES AS A SMALL BUSINESS UNDER PARAGRAPH
(D)(8) OF THIS SECTION. TABLE II OF APPENDIX DI LISTS THE ORGANIC TOXIC
POLLUTANTS IN EACH FRACTION. THE FRACTIONS RESULT FROM THE SAMPLE
PREPARATION REQUIRED BY THE ANALYTICAL PROCEDURE WHICH USES GAS
CHROMOTOGRAPH/MASS SPECTROMETRY. A DETERMINATION THAT AN APPLICANT
FALLS WITHIN A PARTICULAR INDUSTRIAL CATEGORY FOR THE PURPOSES OF
SELECTING FRACTIONS FOR TESTING IS NOT CONCLUSIVE AS TO THE APPLICANT'S
INCLUSION IN THAT CATEGORY FOR ANY OTHER PURPOSES.
(B) THE POLLUTANTS LISTED IN TABLE III OF APPENDIX D (THE TOXIC
METALS, CYANIDE, AND TOTAL PHENOLS).
(III) EACH APPLICANT MUST REPORT FOR EACH OUTFALL QUANTITATIVE DATA
FOR THE FOLLOWING POLLUTANTS, IF THE APPLICANT KNOWS OR HAS REASON TO
BELIEVE THAT THE POLLUTANT IS DISCHARGED FROM THE OUTFALL:
(A) ALL POLLUTANTS LISTED IN TABLE II OF TABLE III OF APPENDIX D (THE
TOXIC POLLUTANTS) FOR WHICH QUANTITATIVE DATA IS NOT OTHERWISE REQUIRED
UNDER PARAGRAPH (D)(7)(II) OF THIS SECTION EXCEPT THAT AN APPLICANT
QUALIFYING AS A SMALL BUSINESS UNDER PARAGRAPH (D)(8) OF THIS SECTION IS
NOT REQUIRED TO ANALYZE FOR THE POLLUTANTS LISTED IN TABLE II OF
APPENDIX D (THE ORGANIC TOXIC POLLUTANTS).
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 156 OF 225
COSTLE DM ADMINISTRATOR
EPA
113655
REGULATIONS
(B) ALL POLLUTANTS IN TABLE IV OF APPENDIX D (CERTAIN CONVENTIONAL
AND NONCONVENTIONAL POLLUTANTS).
(IV) EACH APPLICANT MUST INDICATE WHETHER IT KNOWS OR AS REASON TO
BELIEVE THAT ANY OF THE POLLUTANTS IN TABLE V OF APPENDIX D (CERTAIN
HAZARDOUS SUBSTANCES AND ASBESTOS) IS DISCHARGED FROM EACH OUTFALL. FOR
EVERY POLLUTANT EXPECTED TO BE DISCHARGED, THE APPLICANT MUST BRIEFLY
DESCRIBE TE REASONS THE POLLUTANT IS EXPECTED TO BE DISCHARGED, AND
REPORT ANY QUANTITATIVE DATA IT HAS FOR ANY POLLUTANT.
(V) EACH APPLICANT MUST REPORT QUANLITATIVE DATA, GENERATED USING A
SCREENING PROCEDURE NOT CALIBRATED WITH ANALYTICAL STANDARDS FOR
2,3,7,8-TETRACHLORODIBEZO-P-DIOXIN (TCDD) IF IT:
(A) USES OR MANUFACTURES 2, 4, 5-TRICHLOROPHENOXY ACETIC ACID
(2,4,5-T); 20(2,4,5-TRICHLOROPHENOXY) PROPANOIC ACID (SILVEX,
2,4,5,TP); 2-(2,4,5-TRICHLOROPHENOXY) ETHYL 2,2-DICHLOROPROPIONATE
(EREON); O,O-DIMETHLY O-(2,4,5-TRICHLOROPHENYL) PHOSPHOROTHIOATE
(ONNEL); 2,4,5-TR-CHLOROPHENOL (TCP); OR HEXACHLOROPHENE (HCP); OR
(B) KNOWS OR HAS REASON TO BELIEVE THAT TCDD IS OR MAY BE PRESENT IN
AN EFFLUENT.
(8) SMALL BUSINESS EXEMPTION. AN APPLICANT WHICH QUALIFIES AS A
SMALL BUSINESS UNDER ONE OF THE FOLLOWING CRITERIA IS EXEMPT FROM THE
REQUIREMENTS IN PARAGRAPHS (D)(7)(II)(A) OR (D)(7)(III)(A) OF THIS
SECTION TO SBUMIT QUANTITATIVE DATA FOR THE POLLUTANTS LISTED IN TABLE
II OF APPENDIX D (THE ORGANIC TOXIC POLLUTANTS);
(I) FOR COAL MINES, A PROBABLE TOTAL ANNUAL PRODUCTION OF LWSS THEN
100,0U0 TONS PER YEAR.
(II) FOR ALL OTHER APPLICANTS, GROSS TOTAL ANNUAL SALES AVERAGING
LESS THAN $100,000 PER YEAR (IN SECOND QUARTER 1980 DOLLARS).
(9) USED OR MANUFACTURED TOXICS. A LISTING OF ANY TOXIC POLLUTANT
WHICH THE APPLICANT DOWS OR EXPECTS THAT IT WILL DURING THE NEXT 5 YEARS
USE OR MANUFACTURE AS AN INTERMEDIATE OR FINAL PRODUCT OR BYPRODUCT.
(10) POTENTIAL DISCHARGES. A DESCRIPTION OF THE EXPECTED LEVELS OF
ANDTHE REASONS FOR ANY DISCHARGES OF POLLUTANTS WHICH THE APPLICANT
KNOWS OR HAS REASON TO BELIEVE WILL EXCEED TWO TIME THE VALUES REPORTED
IN PARAGRAPH (D)(7) OF THIS SECTION OVER THE NEXT 5 YEARS.
(11) BIOLOGICAL TOXICITY TESTS. AN IDENTIFICATION OF ANY BIOLOGICAL
TOXICITY TESTS WHICH THE APPLICANT KNOWS OR HAS REASON TO BELIEVE HAVE
BEEN MADE WITHIN THE LAST 3 YEARS ON ANY OF THE APPLICANT'S DISCHARGES
OR ON A RECEIVING WATER IN RELATION TO A DISCHARGE.
(12) CONTRACT ANALYSES. IF A CONTRACT LABORATORY OR CONSULTING FIRM
PERFORMED ANY OF THDE ANALYSES REQUIRED BY PARAGRAPH (D)(7) OF THIS
SECTION, THE IDENTITY OF EACH LABORATORY OR FIRM AND ANALYSES PERFORMED.
(13) ADDITIONAL INFORMATION. IN ADDITION TO THE INFORMATION REPORTED
ON THE APPLICATION FORM, APPLICANTS SHALL PROVIDE TO THE DIRECTOR, AT
HIS OR HER REQUREST, SUCH OTHER INFORMATION AS THE DIRECTOR MAY
REASONABLY REQUIRE TO ASSESS THE DISCHARGES OF THE FACILITY AND TO
DETERMINE WHETHER TO ISSUE AN NPDES PERMIT. THE ADDITIONAL INFORMATION
MAY INCLUDE ADDITIONAL QUANTITATIVE DATA AND BIOASSAYS TO ASSESS THE
RELATIVE TOXICITY OF DISCHARGES TO AQUATIC LIFE AND REQUIREMENTS TO
DETERMINE THE CAUSE OF THE TOXICITY.
(E) APPLICATION REQUIREMENTS FOR NEW AND EXISTING CONCENTRATED ANIMAL
FEEDING OPERATIONS AND AQUATIC ANIMAL PRODUCTION FACILITIES. NEW AND
EXISTING CONCENTRAT ANIMAL FEEDING OPERATIONS (DEFINED IN SECTION
122.54) AND CONCENTRATED AQUATIC ANIMAL PRODUCTION FACILITIES (DEFINED
IN SECTION 122.55) SHALL PROVIDE THE FOLLOWING INFORMATION TO THE
DIRECTOR, USING THE APPLICATION FORM PROVIDED BY THE DIRECTOR:
(1) FOR CONCENTRATED ANIMAL FEEDING OPERATIONS:
(I) THE TYPE AND NUMBER OF ANIMALS IN OPEN CONFINEMENT AND HOUSED
UNDER ROOF.
(II) THE NUMBER OF ACRES USED FOR CONFINEMENT FEEDING.
(III) THE DESIGN BASIS FOR THE RUNOFF DIVERSION AND CONTROL SYSTEM,
IF ONE EXISTS, INCLUDING THE NUMBER OF ACRES OF CONTRIBUTING DRAINAGE,
THE STORAGE CAPACITY, AND THE DESIGN SAFETY FACTOR.
(2) THE CONCENTRATED AQUATIC ANIMAL PRODUCTION FACILITIES:
(I) THE MAXIMUM DAILY AND AVERAGE MONTHLY FLOW FROM EACH OUTFALL.
(II) THE NUMBER OF PONDS, RACEWAYS, AND SIMILAR STRUCTRUES.
(III) THE NAME OF THE RECEIVING WATER AND THE SOURCE OF INTAKE WATER.
(IV) FOR EACH SPECIES OF AQUATIC ANIMALS, THE TOTAL YEARLY AND
MAXIMUM HARVESTABLE WEIGHT.
(V) THE CALENDAR MONTH OF MAXIMUM FEEDING AND THE TOTAL MASS OF FOOD
FED DURING THAT MONTH.
(F) APPLICATION REQUIREMENTS FOR NEW AND EXISTING POTWS. (RESERVED.)
(G) APPLICATION REQUIREMENTS FOR NEW SOURCES AND NEW DISCHARGERS.
(RESERVED.
(H) SPECIAL PROVISIONS FOR APPLICATIONS FROM NEW SOURCES.
(1) THE OWNER OR OPERATOR OF ANY FACILITY WHICH MAY BE A NEW SOURCE
(AS DEFINED IN SECTION 122.3) AND WHICH ISLOCATED IN A STATE WITHOUT AN
APPROVED NPDES PROGRAM MUST COMPLY WITH THE PROVISIONS OF THIS
PARAGRAPH.
(2)(I) BEFORE BEGINNING ANY ON-SITE CONSTRUCTION AS DEFINED IN
SECTION 122.66, THE OWNER OR OPERATOR OF ANY FACILITY WHICH MAY BE A NEW
SOURCE MUST SUBMIT INFORMATION OT THE REGIONAL ADMINSTRATOR SO THAT HE
OR SHE CAN DETERMINE IF THE FACILITY IS A NEW SOURCE. THE REGIONAL
ADMINISTRATOR MAY REQUREST ANY ADDITIONAL INFORMATION NEEDED TO DETERMIN
WHETHER THE FACILITY IS A NEW SOURCE.
(II) THE REGIONAL ADMINISTRATOR SHALL MAKE AN INITIAL DETERMINATION
WHETHER THE FACILITY IS A NEW SOURCE WITHIN 30 DAYS OF RECEIVING ALL
NECESSARY INFORMATION UNDER PARAGRAPH (H)(2)(I) OF THIS SECTION.
(3) THE REGIONAL ADMINISTRATOR SHALL ISSUE A PUBLIC NOTICE IN
ACCORDANCE WITH SECTION 124.10 OF THE NEW SOURCE DETERMINATION UNDER
PARAGRAPH (H)(2) OF THIS SECTION. IF THE REGIONAL ADMINISTRATOR HAS
DETERMINED THATTHE FACILITY IS A NEW SOURCE, THE NOTICE SHALL STATE THAT
THE APPLICANT MUST COMPLY WITH THE ENVIRONMENTAL REVIEW REQUIREMENTS OF
40 CFR PART 6.600 ET SEQ.
(4) ANY INTERESTED PERSON MAY CHALLENGE THE REGIONAL ADMINISTRATOR'S
INITIAL NEW SOURCE DETERMINATION BY REQUIRESTING AND EVIDENTIARY HEARING
UNDER SUBPART E OF PART 124 WITHIN 30 DAYS OF ISSUANCE OF THE PUBLIC
NOTICE OF THE INITIAL DETERMINATION. THE REGIONAL ADMINISTRATOR MAY
DEFER THE EVIDENTIARY HEARING ON THE DETERMINATION UNTIL AFTER A FINAL
PERMIT DECISION IS MADE, AND CONSOLIDATE THE HEARING ON THE
DETERMINATION WITH ANY HEARING ON THE PERMIT.
(IV) VARIANCE REQUESTS BY NON-POTWS. A DISCHARGER WHICH IS NOT A
PUBLICLY OWNED TREATMENT WORKS (POTW) MAY REQUREST A VARIANCE FROM
OTHERWISE APPLICABLE EFFLUENT LIMITATIONS UNDER ANY OF THE FOLLOWING
STATUTORY OR REGULATORY PROVISIONS WITHIN THE TIMES SPECIFIED IN THIS
PARAGRAPH:
(1) FUNDAMENTALLY DIFFERENT FACTORS. A REQUEST FOR A VARIANCE BASED
ON THE PRESENCE OF "FUNDAMENTALLY DIFFERENT FACTORS" FROM THOSE ON WHICH
THE EFFLUENT LIMITATIONS GUIDELINE WAS BASED SHALL BE MADE BY THE CLOSE
OF THE PUBLIC OMMENT PERIOD UNDER SECTION 124.10. THE REQUREST SHALL
EXPLAIN HAS THE REQUIREMENTS OF SECTION 124.13 AND 40 CFR PART 125,
SUBPART D HAVE BEEN MET.
(2) NON-CONVENTIONAL POLLUTANTS. A REQUREST FOR A VARIANCE
FROM THE BAT REQUIREMENTS FOR CWA SECTION 301(B)(2)(F) POLLUTANTS
(COMMONLY CALLED "NON-CONVENTIONAL" POLLUTANTS) PURSUANT
TO SECTION 301(C) OF CWA BECAUSE OF THEECONOMIC CAPABILITY OF
THE OWNER OR OPERATOR, OR PURSUANT TO SECTION 301(G) OF
CWA BECAUSE OF CERTAIN ENVIRONMENTAL CONSIDERATIONS, WHEN
THOSE REQUIREMENTS WERE BASED ON EFFLUENT LIMITATION
GUIDELINES, MUST BE MADE BY.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 157 OF 225
COSTLE DM ADMINISTRATOR
EPA
113656
REGULATIONS
(I) SUBMITTING AN INITIAL REQUREST TO THE REGIONAL ADMINISTRATOR AS
WELL AS TO THE STATE DIRECTOR IF APPLICABLE, STATING THE NAME OF
DISCHARGER, THE PERMIT NUMBER, THE OUTFALL NUMBER(S), THE APPLICABLE
EFFLUENT GUIDELINE, AND WHETHER THE DISCHARGER IS REQURESTING A SECTION
301(C) OR SECTION 301(G) MODIFICATION OR BOTH. THIS REQUEST MUST HAVE
BEEN FILED NOT LATER THAN:
(A) SEPTEMBER 25, 1978, FOR A POLLUTANT WHICH IS CONTROLLED BY A BAT
EFFLUENT LIMITATION GUIDELINE PROMULGATED BEFORE DECEMBER 27, 1977: OR
(B) 270 DAYS AFTER PROMULGATION OF AN APPLICA0LE EFFLUENT LIMITATION
GUIDELINE FOR GUIDELINES PROMULGATED AFTER DECEMBER 27,1977; AND
(II) SUBMITTING A COMPLETED REQUEST NO LATER THAN THE CLOSE OF THE
PUBLIC COMMENT PERIOD UNDER SECTION 124.10 DEMONSTRATING THAT THE
REQUIREMENTS OF SECTION 124.13 AND THE APPLICABLE REQUIREMENTS OF PART
125 HAVE BEEN MET.
(III) REQUESTS FOR VARIANCE FROM EFFLUENT LIMITATIONS NOT BASED ON
EFFLUENT LIMITATION GUIDELINES, NEED ONLY COMPLY WITH PARAGRAPH
(I)(2)(II) OF THIS SECTION AND NEED NOT BE PRECEDED BY AN INITIAL
REQUEST UNDER PARAGRAPH (I)(2)(I) OF THIS SECTION.
(3) DELAY IN CONSTRUCTION OF POTW. AN EXTENSION UNDER CWA SECTION
301(I)(2) OF TE STATUORY DEADLINES IN SECTION 301(B)(1)(A) OR (B)(1)(C)
OF CWA BASED ON DELAY IN COMPLETION OF A POTW INTO WHICH THE SOURCE IS
TO DISCHARGE MUST HAVE BEEN REQUESTED ON OR BEFORE JUNE 26, 1978. OR 180
DAYS AFTER THE RELEVANT POTW REQUESTED ON EXTENSION UNDER PARAGRAPH (J)
(2) OF THIS SECTION, WHICH EVER IS LATER, BUT IS NO EVENT MAY THIS DATE
HAVE BEEN LATER THAN DECEMBER 25,1978. THE REQUEST SHALL EXPLAIN HOW
THE REQUIREMENTS OF 40 CFR PART 125, SUBPART J HAVE BEEN MET.
(4) INNOVATIVE TECHNOLOGY. AN EXTENSION UNDER CWA SECTION 301(K)
FROM THE STATUTORY DEADLINE OF SECTION 301(B)(2)(A) FOR BEST AVAILABLE
TECHNOLOGY BASED ON THE USE OF INNOVATIVE TECHNOLOGY MAY BE REQUESTED NO
LATER THAN TE CLOSE OF THE PUBLIC COMMENT PERIOD UNDER SECTION 124.10
FOR THE DISCHARGER'S INITIAL PERMIT REQUIRING COMPLIANCE WITH SECTION
301(B)(')(A). THE REQUEST SHALL DEMONSTRATE THAT THE REQUIREMENTS OF
SECTION 124.13 AND PART 125, SUBPART C HAVE BEEN MET.
(5) WATER QUALITY RELATED EFFLUENT LIMITATIONS. A MODIFICATION UNDER
SECTION 302(E)(2) OF REQUIREMENTS UNDER SECTION 302(A) FOR ACHIEVING
WATER QUALITY RELATED EFFLUENT LIMITATIONS MAY BE REQUESTED NO LATER
THAN THE CLOSE OF THE PUBLIC COMMENT PERIOD UNDER SECTION 124.10 ON THE
PERMIT FROM WHICH THE MODIFICATION IS SOUGHT.
(6) THERMAL DISCHARGES. A VARIANCE UNDER CWA SECTION 316(A) FOR THE
THERMAL COMPONENTS OF ANY DISCHARGE MUST BE FILED WITH A TIMELY
APPLICATION FOR A PERMIT UNDER THIS SECTION, EXCEPT THAT IF THERMAL
EFFLUENT LIMITATIONS ARE ESTABLISHED UNDER CWA SECTION 402(A)(1) OR ARE
BASED ON WATER QUALITY STANDARDS THE REQUEST FOR A VARIANCE MAY BE FILED
BY THE CLOSE OF THE PU0LIC COMMENT PERIOD UNDER SECTION 124.10. A COPY
OF TE REQUEST AS REQUIRED UNDER 40 CFR PART 125, SUBPART H, SHALL BE
SENT SIMULTANEOUSLY TO THE APPROPRIATE STATE OR INTERSTATE CERTIFYING
AGENCY AS REQURED UNDER 40 CFR PART 125. (SEE SECTION 124.65 FOR
SPECIAL PROCEDURES FOR SECTION 316(A) THERMAL VARIANCES.)
(J) VARIANCE REQUESTS BY POTWS. A DISCHARGER WHICH IS A PUBLICLY
OWNED TREATMENT WORKS (POTW) MAY REQUEST A VARIANCE FROM OTHERWISE
APPLICABLE EFFLUENT LIMITATIONS UNDER 40 CFR PART 125. (SEE SECTION
124.65 FOR SPECIAL PROCEDURES FOR SECTION 316(A) THERMAL VARIANCES.)
(J) VARIANCE REQUESTS BY POTWS. A DISCHARGER WHICH IS A PUBLICLY
TREATMENT WORKS (POTW) MAY REQUEST A VARIANCE FROM OTHERWISE APPLICABLE
EFFLUENT LIMITATIONS UNDER ANY OF THE FOLLOWING STATUTORY PROVISIONS AS
SPECIFIED IN THIS PARAGRAPH:
(1) DISCHARGES INTO MARINE WATERS. A PRELIMINARY REQUEST FOR A
MODIFICATION UNDER CWA SECTION 301(H) OF REQUIREMENTS OF CWA SECTION
301(B)(1)(B) FOR DISCHARGES INTO MARINE WATERS MUST HAVE BEEN SUBMITTED
TO THE AGENCY NO LATER THAN SEPTEMBER 25, 1978. A FINAL REQUEST MUST BE
SUBMITTED IN ACCORDANCE WITH THE FILING REQUIREMENTS OF 40 CFR PART 125,
SUBPART G, AFTER THE SUBPART IS PROMULGATED, AND SHALL DEMONSTRATE THAT
ALL THE REQUIREMENTS OF 40 CFR PART 125, SUBPART G HAVE BEEN MET. (SEE
SECTION 124.64 FOR SPECIAL RULES FOR CWA SECTION 301(H) MODIFICATIONS.)
(2) DELAY IN CONSTRUCTION. AN EXTENSION UNDER CWA SECTION 302(I)(1)
OF THE STATUTORY DEADLINES IN CWA SECTIONS 301(B) (1)(B) OR (B)(1)(C)
BASED ON DELAY IN THE CONSTRUCTION OF THE POTW MUST HAVE BEEN REQUESTED
ON OR BEFORE JUNE 26, 1978.
(3) WATER QUALITY BASED EFFLUENT LIMITAITON. A MODIFICATION UNDER
CWA SECTION 302(B)(2) OF THE REQUIREMENTS UNDER SECTION 302(A) FOR
ACHIEVING WATER QUALITY BASED EFFLUENT LIMITATIONS SHALL BE REQUESTED NO
LATER THAN THE CLOSE OF THE PUBLIC COMMENT PERIOD UNDER SECTION 124.10
ON THE PERMIT FROM WHIC THE MODIFICATION IS SOUGHT.
(K) EXPEDITED VARIANCE PROCEDURES AND TIME EXTENSIONS. (1)
NOTWITHSTANDING THE TIME REQUIREMENTS IN PARAGRAPHS (I) AND (J)
OF THIS SECTION THE DIRECTOR MAY NOTIFY A PERMIT APPLICANT BEFORE
A DRAFT PERMIT IS ISSUED UNDER SECTION 124.6 THAT THE DRAFT
PERMIT WILL LIKELY CONTAIN LIMITATIONS WHICH ARE ELIGIBLE FOR
VARIANCES. IN THE NOTICE THE DIRECTOR MAY REQUIRE THE APPLICANT
AS A CONDITION OF CONSIDERATION OF ANY POTENTIAL VARIANCE REQUEST
TO SUBMIT A REQUEST EXPLAINING HOW THE REQUIREMENTS OF 40 CFR
PART 125 APPLICABLE TO THE VARIANCE HAVE BEEN MET AND MAY REQUIRE
ITS SUBMISSION WITHIN A SPECIFIED REASONABLE TIME AFTER RECEIPT
OF THE NOTICE. THE NOTICE MAY BE SENT BEFORE THE PERMIT APPLICATION
HAS BEEN SUBMITTED. THE DRAFT OR FINAL PERMIT MAY CONTAIN THE
EFFECTIVE UPON FINAL GRANT OF THE VARIANCE.
(2) A DISCHARGER WHO CANNOT FILE A COMPLETE REQUREST REQUIRED UNDER
PARAGRAPHS (I)(2)(II) OR (I)(2)(III) OF THIS SECTION MAY REQUEST AN
EXTENSION. THE EXTENSION MAY BE GRANTED OR DENIED AT THE DISCRETION OF
THE DIRECTOR. EXTENSIONS SHALL BE NO MORE THAN 6 MONTHS IN DURATION.
(APPLICABLE TO STATE NPDES PROGRAMS, SEE SECTION 123.7.)
(A) PERMIT REQUIREMENT. CONCENTRATED ANIMAL FEEDING OPERATIONS ARE
POINT SOUCES SUBJECT TO THE NPDES PERMIT PROGRAM.
(B) DEFINITIONS.
(1)"ANIMAL FEEDING OPERATION" MEANS A LOT OF FACILITY (OTHER
THAN AN AQUATIC ANIMAL PRODUCTION FACILITY) WHERE THE FOLLOWING
CONDITIONS ARE MET:
(I) ANIMALS (OTHER THAN AQUATIC ANIMALS) HAVE BEE, ARE, OR WILL
BE STABLED OR CONFINED AND FED OR MAINTAINED FOR A TOTAL OF 45
DAYS OR MORE IN ANY 12-MONTH PERIOD, AND
(II) CROPS, VEGETATION FORAGE GROWTH, OR POST-HARVEST RESIDUES ARE
NOT SUSTAINED IN THE NORMAL GROWING SEASON OVER ANY PORTION OF THE LOT
OR FACILITY.
(2) TWO OR MORE ANIMAL FEEDING OPERATIONS UNDER COMMON OWNERSHIP ARE
CONSIDERD, FOR THE PURPOSES OF THESE REGULATIONS, TO BE A SINGLE ANIMAL
FEEDING OPERATION IF THEY ADJOIN EACH OTHER OR IF THEY USE A COMMON AREA
OR SYSTEM FOR THE DISPOSAL OF WASTES.
(3)"CONCENTRATED ANIMAL FEEDING OPERATION" MEANS AN"ANIMAL FEEDING
OPERATION" WHICH MEETS THE CRITERIA IN APPENDIX B, OR WHICH THE DIRECTOR
DESIGNATES UNDER PARAGRAPH (C) OF THIS SECTION.
(C) CASE-BY-CASE DESIGNATION OF CONCENTRATED ANIMAL FEEDING
OPERATIONS. (1) THE DIRECTOR MAY DESIGNATE ANY ANIMAL FEEDING OPERATION
AS A CONCENTRATED ANIMAL FEEDING OPERATIONS UPON DETERMINING THAT IT IS
A SIGNIFICANT CONTRIBUTOR OF POLLUTION TO THE WATERS OF THE UNITED
STATES.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 158 OF 225
COSTLE DM ADMINISTRATOR
EPA
113657
REGULATIONS
IN MAKING THIS DESIGNATION THE DIRECTOR SHALL CONSIDER THE FOLLOWING
FACTORS:
(I) THE SIZE OF THE ANIMAL FEEDING OPERATION AND THE AMOUNT OF WASTES
REACHING WATERS IN THE UNITED STATES:
(II) THE LOCATION OF THE ANIMAL FEEDING OPERATION RELATIVE TO WATERS
OF THE UNITED STATES;
(III) THE MEANS OF CONVEYANCE OF ANIMAL WASTES AND PROCESS WASTE
WATERS INTO WATERS OF THE UNITED STATES;
(IV) THE SLOPE, VEGETATION, RAINFALL, AND OTHER FACTORS AFFECTING THE
LIKELIHOOD OR FREQUENCY OF DISCHARGE OF ANIMAL WASTERS AND PROCESS WASTE
WATERS INTO WATERS OF THE UNITED STATES; AND
(V) OTHER RELEVANT FACTORS.
(2) NO ANIMAL FEEDING OPERATION WITH LESS THAN THE NUMBERS OF ANIMALS
SET FORTH IN APPENDIX B SHALL BE DESIGNATED AS A CONCENTRATED ANIMAL
FEEDING OPERATIONS UNLESS:
(I) POLLUTANTS ARE DISCHARGED INTO WATERS OF THE UNITED STATES
THROUGH A MANMADE DITCH, FLUSING SYSTEM, OR OTER SIMILAR MANMADE DEVICE;
OR
(II) POLLUTANTS ARE DISCHARGED DIRECTLY INOT WATERS OF THE UNITED
STATES WHICH ORIGINATE OUTSIDE OF THE FACILITY AND PASS OVER, ACROSS, OR
THROUGH THE FACILITY OR OTHERWISE COME INTO DIRECT CONTACT WITH THE
ANIMALS CONFINED IN THE OPERATION.
(3) A PERMIT APPLICATION SHALL NOT BE REQUIRED FROM A CONCENTRATED
ANIMAL FEEDING OPERATION DESIGNATED UNDER THIS PARAGRAPH UNTIL THE
DIRECTOR HAS CONDUCTED ON ON-SITE INSPECTION OF THE OPERATION AND
DETERMINED THAT THE OPERATION SHOULD AND COULD BE REGULATED UNDER THE
PERMIT PROGRAM.
(APPLICABLE TO STATE NPDES PROGRAMS, SEE SECTION 123.7.)
(A) PERMIT REQUIREMENT. CONCENTRATED AQUATIC ANIMAL PRODUCTION
FACILITIES, ARE DEFINED IN THIS SECTION, ARE POINT SOURCES SUBJECT TO
THE NPDES PERMIT PROGRAM.
(B) DEFINITION. "CONCENTRATED AQUATIC ANIMAL PRODUCTION FACILITY"
MEANS A HATCHER, FISH FARM, OR OTHERFACILITY WHICH MEETS THE CRITERIA IN
APPENDIX C, OR WHICH THE DIRECTOR DESIGNATES UNDER PARAGRAPH (C) OF THIS
SECTION.
(C) CASE-BY-CASE DESIGNATION OF CONCENTRATED AQUATIC ANIMAL
PRODUCTION FACILITIES. (1) THE DIRECTOR MAY DESIGNATE ANY WARM OR COLD
WATER AQUATIC ANIMAL PRODUCTION FACILITY AS A CONCENTRATED AQUATIC
ANIMAL PRODUCTION FACILITY UPON DETERMINING THAT IT IS A SIGNIFICATN
CONTRIBUTOR OF POLLUTION TO WATERS OF THE UNITED STATES. IN MAKING THIS
DESIGNATION THE DIRECTOR SHALL CONSIDER THE FOLLOWING FACTORS:
(I) THE LOCATION AND QUALITY OF THE RECEIVING WATERS OF THE UNITED
STATES;
(II) THE HOLDING, FEEDING, AND PRODUCTION CAPACITIES OF THE FACILITY;
(III) THE QUANTITY AND NATURE OF THE POLLUTANTS REACHING WATERS OF
THE UNITED STATES; AND
(IV) OTHER RELEVANT FACTORS.
(2) A PERMIT APPLICATION SHALL NOT BE REQUIRED FROM A CONCENTRATEED
AQUATIC ANIMAL PRODUCTION FACILITY DESIGNATED UNDER THIS PARAGRAPH UNTIL
THE DIRECTOR HAS CONDUCTED ON-SITE INSPECTION OF THE FACILITY AND HAS
DETCRMINED THAT THE FACILITY SHOULD AND COULD BE REGULATED UNDER THE
PERMIT PROGRAM.
APPLICA0LE TO STATE NPDES PROGRAMS, SEE SECTION 123.7.)
(A) PERMIT REQUIREMENT. DISCHARGES INTO AQUACULTURE PROJECTS, AS
DEFINED IN THIS SECTION, ARE SUBJECT TO THE NPDES PERMIT PROGRAM THROUGH
SECTION 318 OF CWA, AND IN ACCORDANCE WITH 40 CFR PART 125, SUBPART B.
(B) DEFINITIONS. (1)"AQUACULTURE PROJECT" MEANS A DEFINED MANAGED
WATER AREA WHICH USES DISCHARGES OF POLLUTANTS INTO THAT DESIGNATED AREA
FOR THE MAINTENANCE OF PRODUCTION OF HARVESTABLE FRESHWATER, ESTUARINE,
OR MARIN PLANT OR ANIMALS.
(2) "DESIGNATED PROJECT AREA" MEANS THE PORTIONS OF THE WATERS OF THE
UNITED STATES WITHIN WHICH THE PERMITTEE OR PERIT APPLICANT PLANS TO
CONFINE THE PERMIT APPLICANT PLANS TO CONFINE THE CULTIVATED SPECIES,
USING A METHODS OR PLAN OR OPERATION (INCLUDING, BUT NOT LIMITED TO,
PHYSICAL CONFINEMENT) WHICH, ON THE BASIS OF RELIA0LE SCIENTIFIC
EVIDENCE, IS EXPECTED TO ENSURE THAT SPCIFIC INDIVIDUAL ORGANISMS
COMPRISING AN AQUACULTURE CROP WILL ENJOY INCREASED GROWTH ATTRIBUTABLE
TO THE DISCHARGE OF POLLUTANTS, AND BE HARVESTED WITHIN A DEFINED
GEOGRAPHIC AREA.
(APPLICABLE TO STATE NPDES PROGRAMS, SEE SECTION 123.7.)
(A) PERMIT REQUIREMENT. SEPARATE STORM SEWERS, AS DEFINED IN THIS
SECTION ARE POINT SOURCES SUBJECT TO THE NPDES PERMIT PROGRAM. SEPARATE
STORM SEWERS MAY BE PERMITTED EITHER INDIVIDUALLY OR UNDER A GENERAL
PERMIT (SEE SECTION 122.59). AN NPDES PERMIT FOR DISCHARGES INTO WATERS
OF THE UNITED STATES FROM A SEPARATE STORM SEWER COVERS ALL CONVEYANCES
WHICH ARE A PART OF THAT SEPARATE STORM SEWER SYSTEM, EVEN THOUGH THERE
MAY BE SEVERAL OWNERS OR OPERATORS OF THESE CONVEYANCES. HOWEVER,
DISCHARGES INTO SEPARATE STORM SEWERS FROM POINT SOURCES WHICH ARE NOT
PART OFTHE SEPARATE STORM SEWER SYSTEMS MAY ALSO REQUIRE A PERMIT.
(B) DEFINITION. (1) "SEPARATE STORM SEWER"MEANS A CONVEYANCE OR
SYSTEM OF CONVEYANCES (INCLUDING PIPES, CONDUITS, DITCHES, AND CHANNELS)
PRIMARILY USED FOR COLLECTING AND CONVEYING STORM WATER RUNOFF AND WHIC
IS EITHER:
(I) LOCATED IN AN URBANIZED AREAS AS DESIGNATED BY THE BUREAU
OF THE CENSUS ACCORDING TO THE CRITERIA IN 39 FR 15202
(MAY 1, 1974); OR
(II) NOT LOCATED IN AN URBANIZED AREA BUT DESIGNATED UNDER PARAGRAPH
(C) OF THIS SECTION.
(2) EXCEPT AS PROVIDED IN PARAGRAP (B)(3) OF THIS SECTION, A
CONVEYANCE OR SYSTEM OF CONVEYANCES OPERATED PRIMARILY FOR THE PURPOSE
OF COLLECTING AND CONVEYING STORM WATER RUNOFF WHICH IS NOT LOCATED IN
AN URBANIZED AREA AND HAS NOT BEEN DESIGNATED BY THE DIRECTOR UNDER
PARAGRAPH (C) OF THIS SECTION IS NOT CONSIDERED A POINT SOURCE AND IS
NOT SUBJECT TO THE PROVISIONS OF THIS SLCTION.
(3) CONVEYANCES WHICH DISCHARGE PROCESS WASTEWATERN STORM
WATER RUNOFF CONTAMINATE1 BY CONTACT WITH WASTES, RAW
MATERIALS, OR POLLUTANTCONTAMINATED SOIL, FROM LANDS OR
FACILITIES USED FOR INDUSTRIAL OR COMMERCIAL ACTIVITIES, INTO
WATERS OF THE UNITED STATES OR INTO SEPARATE STORM SEWERS ARE
POINT SOURCES THAT MUST OBTAIN NPDES PERMITS BUT ARE NOT
SEPARATE STORM SEWERS.
(4) WHETHER A SYSTEM OF CONVEYANCES IS OR IS NOT A SEPARATE STORM
SEWER FOR PURPOSES OF THIS SECTION SHALL HAVE NO BEARING ON WHETHER THE
SYSTEM IS ELIGIBLE FOR FUNDING UNDER THE TITLE II OF CWA; SEE 40 CFR
SECTION 35.925-21.
(C) CASE-BY-CASE DESIGNATION OF SEPARATE STORM SEWERS. THE DIRECTOR
MAY DESIGNATE A STORM SEWER NOT LOCATED IN AN URBANIZED AREA AS A
SEPARATE STORM SEWER. THIS DESIGNATION MAY BE MADE TO THE EXTENT
ALLOWED TO REQUIRED BY EPA PROMULGATED EFFLUENT GUIDELINES FOR POINT
SOURCES IN THE SEPARATE STORM SEWER CATEGORY; OR WHEN:
(1) A WATER QUALITY MANAGEMENT PLAN UNDER SECTION 208 OF CWA WHICH
CONTAINS REQUIREMENTS APPLICABLE TO SUCH POINT SURCHES IS APPROVED;
OR
(2) THE DIRECTOR DETERMINES THAT A STORM SEWER IS A SIGNIFICANT
CONTRIBUTOR OF POLLUTION TO THE WATERS OF THE UNITED STATES. IN MAKING
THIS DETERMINATION THE DIRECTOR SHALL CONSIDER THE FOLLOWING FACTORS:
(I) THE LOCATION OF THE DISCHARGE WITH RESPECT TO WATERS OF OF THE
UNITED STATES;
(II) THE SIZE OF THE DISCHARGE;
(III) THE QUANTITY AND NATURE OF THE POLLUTANTS REACHING WATERS
OF THE UNITED STATES; AND
(IV) OTHER RELEVANT FACTORS.
(APPLICABLE TO STATES NPDES PROGRAMS, SEE SECTION 123.7.)
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 159 OF 225
COSTLE DM ADMINISTRATOR
EPA
113658
REGULATIONS
(A) PERMIT REQUIREMENT. SILVICULTRUAL POINT SOURCES, AS DEFINED IN
THIS SECTION, ARE POINT SOURCES SUBJECT TO THE NPDES PERMIT PROGRAM.
(B) DEFINITIONS. (1) "SILVICULTURAL POINT SOURCE" MEANS ANY
DISCERNIBLE. CONFINED, AND DISCRETE CONVEYANCE RELATED TO ROCK CRUSHING,
GRAVEL WASING, LOG SORTING, OR LOG STORAGE FACILITIES WHICH ARE OPERATED
IN CONNECTION WITH SILVICULTURAL ACTIVITES AND FROM WHICH POLLUTANTS ARE
DISCHARGED INTO WATERS OF THE UNITED STATES. THE TERM DOES NOT INCLUDE
NON-POINT SOURCE SILVICULTRUAL ACTIVITIES SUCH AS NURSERY OPERATIONS,
SITE PREPARATION, REFORESTATION AND SUBSEQUENT CULTURAL TREATMENT,
THINNING, PRESCRIBED BURNING, PEST AND FIRE CONTROL, HARVESTING
OPERATIONS, SURFACE DRAINAGE, OR ROAD CONSTRUCTION AND MAINTENANCE FROM
WHICH THERE IS NATURAL RUNOFF. HOWEVER, SOME OF THESE ACTIVITIES (SUCH
AS STREAM CROSSING FOR ROADS) MAY INVOLVE POINT SOURCE DISCHARGES OF
DREDGED OR FILL MATERIAL WHICH MAY REQUIRE A CWA SECTION 404 PERMIT (SEE
33 CFR SECTION 2U9.120 AND PART 123, SUBPART E).
(2) "ROCK CRUSHING AND GRAVEL WASHING FACILITIES" MEANS FACILITIES
WHICH PROCESS CRUSHED AND BROKENT STONE, GRAVE, AND RIPRAP (SEE 40 CFR
PART 43L, SUBPART B, INCLUDING THE EFFLUENT LIMITATIONS GUIDELINES).
(3) "LOG SORTING AND LOG STORAGE FACILITIES" MEANS FACILITIES WHOSE
DISCHARGES RESULT FROM THE HOLDING OF UNPROCESSED WOOD, FOR EXAMPLE,
LOGS OR ROUNDWOOD WITH BARK OR AFTER REMOVAL OF BARK HELD IN
SELF-CONTAINED EODIES OF WATER (MILL PONDS OR LOG PONDS) OR STORED OR
LAND WHERE WATER IS APPLIED INTENTIONALLY ON THE LOGS (WET DECKING).
(SEE 40 CFR PART 429, SUBPART J, INCLUDING THE EFFLUENT LIMITATIONS
GUIDELINES).
(APPLICABLE TO STATE NPDES PEROGRAMS, SEE SECTION 123.7).
(A) COVERAGE. THE DIRECTOR MAY ISSUE A GENERAL PERMIT IN ACCORDANCE
WITH THE FOLLOWING:
(1) AREA. THE GENERAL PERMIT SHALL BE WRITTEN TO COVER A CATEGORY OF
DISCHARGES DESCRIBED IN THER PERMIT UNDER PARAGRAPH (A)(2) OF THIS
SECTION, EXCEPT THOSE COVERED BY INDIVIDUAL PERMITS, WITHIN A GEOGRAPHIC
AREA. THE AREA SHALL CORRESPOND TO EXISTING GEOGRAPHIC OR POLITICAL
BOUNDARIES, SUCH AS:
(I) DESIGNATED PLANNING AREAS UNDER SECTIONS 208 AND 303 OF CWA;
(II) SEWER DISTRICTS OR SEWER AUTHORITIES;
(II) CITY, COUNTY, OR STATE POLITICAL BOUNDAREIS;
(IV) STATE HIGHWAY SYSTEMS;
(V) STANDARD METROPOLITAN STATISTICAL AREAS AS DEFINED BY THE OFFICE
OF MANAGEMENT AND BUDGET;
(VI) URBANIZED AREAS AS DESIGNATED BY THE BUREAU OF THE CENSUS
ACCORDING TO CRITERIA IN 30 FR 15202 (MAY 1, 1974); OR
(VII) ANY OTHER APPROPRIATE DIVISION OR COMBINATION OF BOUNDARIES.
(2) SOURCES. THE GENERAL PERMIT SHALL BE WRITTEN TO REGULATE, WITHIN
THE AREA DESCRIBED IN PARAGRAPH (A)(1) OF THIS SECTION, EITHER:
(I) SEPARATE STORM SEWERS; OR
(II) A CATEGORY OF POINT SOURCES OTHER THAN SEPARATE STORM SEWERS IF
THE SOURCES ALL;
(A) INVOLVE THE SAME OR SUBSTANTIALLY SIMILAR TYPES OF OPERATIONS;
(B) DISCHARGE THE SAME TYPES OF WASTES;
(C) REQUIRE THE SAME EFFLUENT LIMITATIONS OR OPERATING CONDITIONS;
(D) REQUIRE THE SAME OF SIMILAR MONITORING; AND
(E) IN THE OPINION OF THE DIRECTOR, ARE MORE APPROPRIATELY CONTROLLED
UNDER A GENERAL PERMIT THAN UNDER INDIVIDUAL PERMITS.
(B) ADMINISTRATION-(1) IN GENERAL. GENERAL PERMITS MAY BE ISSUED,
MODIFIED, REVOKED AND REISSUED, OR TERMINATED IN ACCORDANCE WITH
APPLICABLE REQUIREMENT SOF PART 124 OF CORRESPONDING STATE REQULATIONS.
SPECIAL PROCEDURES FOR ISSUANCE ARE FOUND AT SECTION 123.76 TO STATES
AND SECTION 124.58 FOR EPA.
(2) REQUIRING AN INDIVIDUAL PERMIT. (I) THE DIRECTOR MAY REQUIRE ANY
PERSON AUTHORIZED BY A GENERAL PERMIT TO APPLY FOR AND OBTAIN AND
INDIVIDUAL NPDES PERMIT. ANY INTERESTED PERSON MAY PETITION THE
DIRECTOR TO TAKE ACTION UNDER THIS SUBPARAGRAPH. CASES WHERE AN
INDIVIDUAL NPDES PERMIT MAY BE REQUIRED INCLUDE THE FOLLOWING:
(A) THE DISCHARGE(S) IS A SIGNIFICANT CONTRIBUTOR OF POLLUTION AS
DETERMINED BY THE FACTORS SET FORTH AT SECTION 122.57 (E) (2);
(B) THE DISCHARGER IS NOT IN COMPLIANCE WITH THE CONDITIONS OF THE
GENERAL NPDES PERMIT.
(C) A CHANGE HAS OCCURRED IN THE AVAILABILITY OF DEMONSTRATED
TECHNOLOGY OR PRACTICES FOR THE CONTROL OR ABATEMENT OF POLLUTANTS
APPLICABLE TO THE POINT SOURCE;
(D) EFFLUENT LIMITATION GUIDELINES ARE PROMULGATED FOR POINT SOURCES
COVERD BY THE GENERAL NPDES PERMIT;
(E) A WATER QUALITY MANAGEMENT PLAN CONTAINING REQUIREMENTS
APPLICABLE TO SUCH POINT SOURCES IN APPROVED; OR
(F) THE REQUIREMENTS OF PARAGRAPH (A) OF THIS SECTION ARE NOT MET.
(II) FOR EPA ISSUED GENERAL PERMITS ONLY, THE REGIONAL ADMINISTRATOR
MAY REQUIRE ANY OWNER OR OPERATOR AUTHORIZED BY A GENERAL PERMIT TO
APPLY FOR AN INDIVIDUAL NPDES PERMIT AS PROVIDED IN PARAGRAPH (B)(2)(1)
OF THIS SECTION, ONLY IF THE THE OWNER OR OPERATOR PERMIT APPLICATION IS
REQUIRED. THIS NOTICE SHALL INCLUDE A BRIEF STATEMENT OF THE REASONS
FOR THIS DECISION, AN APPLICATION FORM, A STATEMENT SETTING A TIME
FORTHE OWEER OR OPERATOR TO FILE THE APPLICATION, AND A STATEMENT THAT
ON THE EFFECTIVE DATE OF THE INDIVIDUAL NPDES PERMIT THE GENERAL PERMIT
AS IT APPLIES TO THE INDIVIDUAL PERMITTEE SHALL AUTOMATICALLY TERMINATE.
THE DIRECTOR MAY GRANT ADDITIONAL TIME UPON REQUEST OF THE APPLICANT.
(III) ANY OWNER OR OPERATOR AUTHORIZED BY A GENERAL PERMIT MAY
REQUEST TO BE EXCLUDED FROM THE COVERAGE OF THE GENERAL PERMIT BY
APPLYING FOR AN INDIVIDUAL PERMIT. THE OWNER OR OPERATOR SHALL SUBMIT
AN APPLICATION UNDER SECTION 122.53, WITH REASONS SUPPORITING THE
REQUEST, TO THE DIRECTOR NO LATER THAN 90 DAYS AFTER THE PUBLICATION BY
EPA OF THE GENERAL PERMIT IN THE FEDERAL REGISTER OR THE PUBLICATION BY
A STATE IN ACCORDANCE WITH APPLICABLE STATE LAW. THE REQUEST SHALL BE
PROCESSED UNDER PART 124 OF APPLICABLE STATE PROCEDURES. THE REQUEST
SHALL BE GRANTED BY ISSUING OF ANY INDIVIDUAL PERMIT IF THE REASONS
CITED BY THE OWNER OR OPERATOR ARE ADEQUATE TO SUPPORT THE REQUEST.
(IV) WHEN AN INDIVIDUAL NPDES PERMIT IS ISSUED TO AN OWNER OR
OPERATOR OTHERWISE SUBJECT TO A GENERAL NPDES PERMIT, THE APPLICABILITY
OF THE GENERAL PERMIT TO THE INDIVIDUAL NPDES PERMITTEE IS AUTOMATICALLY
TERMINATED ON THE EFFECTIVE DATE OF THE INDIVIDUAL PERMIT.
(V) A SOURCE EXCLUDED FROM A GENERAL PERMIT SOLELY BECAUSE IT ALREADY
HAS AN INDIVIDUAL PERMIT MAY REQUEST THAT THE INDIVIDUAL PERMIT BE
REVOKED, AND THAT IT BE COVERED BY THE GENERAL PERMIT. UPON REVOCTION
OF THE INDIVIDUAL PERMIT, THE GENERAL PERMIT SHALL APPLY TO THE SOURCE.
(APPLICABLE TO STATE NPDES PROGRAMS, SEE SECTION 123.7.)
THE FOLLOWING CONDITIONS, IN ADDTION TO THOSE SET FORTH IN SECTION
122.7, APPLY TO ALL NPDES PERMITS:
(A) IN ADDITION TO SECTION 122.7(A) (DUTY TO COMPLY);
(1) THE PERMITTEE SHALL COMPLY WITH EFFLUENT STANDARDS OR
PROHIBITIONS ESTABLISHED UNDER SECTION 3U7(A) OF THE CLEAN WATER ACT FOR
TOXIC POLLUTANTS WITHIN THE TIME PROVIDED IN THE REGULATIONS THAT
ESTABLISH THESE STANDARDS OR PROHIBITIONS, EVEN IF THE PERMIT HAS NOT
YET BEEN MODIFIED TO INCORPORATE THE REQUIREMENT.
(2) THE CLEAN WATER ACT PROVIDES THAT ANY PERSON WHO VIOLATES A
PERMIT CONDITION IMPLEMENTING SECTION 301, 302, 306, 307, 308, 318, OR
405 OF THE CLEAN WATER ACT IS SUBJECT TO A CIVIL PENALTY NOT TO EXCEED
$100,00 PER DAY OF SUCH VIOLATION.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 160 OF 225
COSTLE DM ADMINISTRATOR
EPA
113659
REGULATIONS
ANY PERSON WHO WILLFULLY OR NEGLIGENTLY VIOLATES PERMIT CONDITIONS
IMPLEMENTING SECTION 3U1, 302, 306, 307, OR 308 OF THE CLEAN WATER ACT
IS SUBJECT TO A FINE OF NOT LESS THAN $2,500 NOR MORE THAN $25,00 PER
DAY OF VIOLATION, OR BY IMPRISONMENT FOR NOT MORE THAN 1 YEAR, OR BOTH.
(B) IN ADDITION TO SECTION 122.7(C) DUTY OT HALT OR REDUCE ACTIVITY),
UPON REDUCTION, LOSS, OR FAILURE OF THE TREATMENT FACILITY, THE
PERMITTEE SHALL, TO THE EXTENT NECESSARY TO MAINTAIN COMPLIANCE WITH ITS
PERMIT, CONTROL PRODUCTION OR ALL DISCHARGES OR BOTH UNTIL THE FACILITY
IS RESTORED OR AN ALTERNATIVE MTHODS OF TREATMENT IS PROVIDED. THIS
REQUIREMENT APPLIES, FOR EXAMPLE, WHEN THE PRIMARY SOURCE OF POWER OF
THE TREATMENT FACILITY FAILS OR IS REDUCED OR LOST.
(C) IN ADDITION TO SECTION 122.7(J) (MONITORING);
(1) MONITORING MUST BE CONDUCTED ACCORDING TO TEST PROCEDURES
APPROVED UNDER 40 CFR PART 136, UNLESS OTHER TEST PROCEDURES HAVE BEEN
SPECIFIED IN THIS PERMIT.
(2) THE CLEAN WATER ACT PROVIDES THAT ANY PERSON WHO FALSIFIES,
TAMPERS WITH, OR KNOWINGLY RENDERS INACCURATE ANY MONITORING DEVICE OR
METHOD REQUIRED TO BE MAINTAINED UNDER THIS PERMIT SHALL, UPON
CONVICTION, BE PUNISHED BY A FINE OF NOT MORE THAN $10,PPP PER
VIOLATION, OR BY IMPRISONMENT FOR NOT MORE THAN 6 MONTHS PER VILLATION,
OR BY BOTH.
(D) IN ADDITION TO SECTION 122.7(K) (SIGNATORIES); THE CLEAN WATER
ACT PROVIDES THAT ANY PERSON WHO KNOWINGLY MAKES ANY FALSE STATEMENT,
REPRESENTATION, OR CERTIFICATION IN ANY RECORD OR OTHER DOCUMENT
SUBMITTED OR REQUIRED TO BE MAINTAINED UNDER THIS PERMIT, INCLUDING
MONITORING REPORTS OR REPORTS OF COMPLIANCE OR NONCOMPLIANCE SHALL, UPON
CONVICTION, BE PUNISHED BY A FINE OF NOT MORE THAN $10,000 PER
VIOLATION, OR BY IMPRISONMENT FOR NOT MORE THAN 6 MONTHS PER VIOLATION,
OR BY BOTH.
(E) IN ADDITION TO SECTION 133.7(1)(3) (MONITORING REPORTS);
(1) MONITORING RESULTS MUST BE REPORTED ON A DISCHARGE MONITORING
REPORT (DMR).
(2) IN THE PERMITTEE MONITORS ANY POLLUTANT MORE FREQUENTLY THAN
REQUIRED BY THE PERMIT, USING TEST PROCEDURES APPROVED UNDER 40 CFR 136
OR AS SPECIFIED IN THE PERMIT, RE RESULTS OF THIS MONITORING SHALL BE
INCLUDED IN THE CALCULATION AND REPORTING OF THE DATA SUBMITTED IN THE
DMR.
(3) CALCULATIONS FOR ALL LIMITATIONS WHICH RQUIRE AVERAGING OF
MEASUREMENTS SHALL UTILIZE AN ARITHMETIC MEAN UNLESS OTHERWISE SPECIFIED
BY THE DIRECTOR IN THE PERMIT.
(F)(1) THE FOLLOWING SHALL BE INCLUDED AS INFORMATION WHICH MUST BE
REPORTED WITHIN 24 HOURS UNDER SECTION 122.7(I)(5) (24-HOUR REPORTING);
(I) ANY UNANTICIPATED BYPASS WHICH EXCEEDS ANY EFFLUENT LIMIATION IN
THE PERMIT. (SEE SECTION 122.60(G) BELOW.)
(II) ANY UPSET WHICH EXCEEDS ANY EFFLUENT LIMITATION IN THE PERMIT.
(III) VIOLATION OF A MAXIMUM DAILY DISCHARGE LIMITATION FOR ANY OF
THE POLLUTANTS LISTED BY THE DIRECTOR IN THE PERMIT TO BE REPORTED
WITHIN 24 HOURS. (SEE SECTION 122.62(G).)
(2) THE DIRECTOR MAY WAIVE THE WRITTEN REPORT ON A CASE-BY-CASE BASIS
IF THE ORAL REPORT HAS BEEN RECEIVED WITHIN 24 HOURS.
(G) BYPASS-(1) DEFINITIONS. (I) "BYPASS" MEANS THE INTENTIONAL
DIVERSION OF WASTE STREAMS FROM ANY PORTION OF A TREATMENT FACILITY.
(II) "SEVERE PROPERTY DAMAGE" MEANS SUBSTANTIAL PHYSICAL DMAGE TO
PEROPERTY, DAMAGE TO THE TREATMENT FACILITIES WHICH CAUSE THEM TO BECOME
INOPERABLE, OR SUBSTANTIAL AND PERMANENT LOSS OF NATURAL RESOURCES WHICH
CAN REASONABLY BE EXPECTED TO OCCUR IN THE ABSENCE OF BYPASS. SEVERE
PROPERTY DAMAGES DOES NOT MEAN ECONOMIC LOSS CAUSED BY DELAYS IN
PRODUCTION.
(2) BYPASS NOT EXCEEDING LIMITATIONS. THE PERMITTEE MAY ALLOW ANY
BYPASS TO OCCUR WHICH DOES NOT CAUSE EFFLUENT LIMITATIONS TO BE
EXCEEDED, BUT ONLY IF IT ALSO IS FOR ESSENTIAL MAINTENANCE TO ASSURE
EFFICIENT OPERATION. THESE BYPASSES ARE NOT SUBJECT TO THE PROVISIONS
OF PARAGRAPHS (G)(3) AND (G) (4) OF THIS SECTION.
(3) NOTICE-(I) ANTICIPATED BYPASS, IF THE PERMITTEE KNOWS IN ADVANCE
OF THE NEED FOR A BYPASS, IT SHALL SUBMIT PRIOR NOTICE, IF POSSIBLE AT
LEAST TEN DAYS BEFORE THE DATE OF THE BYPASS.
(II) UNANTICIPATED BYPASS. THE PERMITTEE SHALL SUBMIT NOTICE OF AN
UNANTICIPATED BYPASS AS REQUIRED IN PARAGRAPH (F) OF THIS SECTION
(24-HOUR NOTICE).
(4) PROHIBITON OF BYPASS. (1) BYPASS IS PROHIBITED, AND THE DIRECTOR
MAY TAKE ENFORCEMENT ACTION AGAINS A PERMITTEE FOR BYPASS, UNLESS:
(A) BYPASS WAS UNAVOIDABLE TO PREVENT LOSS OF LIFE, PERSONAL INJURY,
OR SEVERE PROPERTY DAMAGE;
(B) THERE WERE NO FEASIBLE ALTERNATIVES TO THE BYPASS, SUCH AS
THE USE OF AUXILIARY TREATMENT FACILITIES, USE OF AUXILIARY
TREATED WASTES, OR MAINTENANCE DURING NORMAL PERIODS OF
EQUIPMENT DOWNTIME. THIS CONDITION IS NOT SATIFIED IF THE
PERMITTEE COULD HAVE INSTALLED ADEQUATE BACKUP EQUIPMENT TO
PREVENT A BYPASS WHICH OCCURRED DURING NORMAL PERIODS OF
EQUIPMENT DOWNTIME OR PREVENTIVE MAINTENANCE; AND
(C) THE PERMITTEE SUBMITTED NOTICES AS REQUIRED UNDER PARAGRAPH
(G)(3) OF THIS SECTION.
(II) THE DIRECTOR MAY APPROVE AN ANTICIPATED BYPASS, AFTER
CONSIDERING ITS ADVERSE EFFECTS, IF THE DIRECTOR DETERMINES THAT IT WILL
MEET THE THREE CONDITIONS LISTED ABOVE IN PARAGRAPH (G) (4)(I) OF THIS
SECTION.
(H) UPSET.-(1) DEFINITION. "UPSE" MEANS AN EXCEPTIONAL INCIDENT IN
WHICH THERE IS UNINTENTIONAL AND TEMPORARY NONCOMPLIANCE WITH
TECHNOLOGY=BASED PERMIT EFFLUENT LIMITATIONS BECAUSE OF FACTORS BEYOND
THE REASONABLE CONTROL OF THE PERMITTEE. AN UPSET DOES NOT INCLUDE
NONCOMPLIANCE TO THE EXTENT CAUSED BY OPERATIONAL ERROR, IMPROPERLY
DESIGNED TREATMENT FACILITIES, INADEQUATE TREATMENT FACILITIES, LACK OF
PREVENTIVE MAINTENANCE, OR CARELESS OR IMPROPER OPERATION.
(2) EFFECT OF AN UPSET. AN UPSET CONSTITUTES AN AFFIRMATIVE DEFENSE
TO AN ACTION BROUGHT FOR NONCOMPLIANCE WITH SUCH TECHNOLOGY-BASED PERMIT
EFFLUENT LIMITATIONS IF THE REQUIREMENTS OF PARAGRAPH (H)(3) OF THIS
SECTION ARE MET. NO DETERMINATION MADE DURING ADMINISTRATIVE REVIEW OF
CLAIMS THAT NONCOMPLIANCE WAS CAUSED BY UPSET, AND BEFORE AN ACTION FOR
NONCOMPLIANCE, IS FINAL ADMINISTRATIVE ACTION SUBJECT TO JUDICIAL
REIVEW.
(3) CONDITIONS NECESSARY FOR A DEMONSTRATION OF UPSET. A PERMITTEE
WHO WISHES TO ESTABLISH THE AFFIRMATIVE DEFENSE OF UPSET SHALL
DEMONSTRATE, THROUG H PROPERLY SIGNED, CONTEMPORENEOUS OPERATING LOGS,
OR OTHER RELEVANT EVIDENCE THAT:
(I) AN UPSET OCCURRED AND THAT THE PERMITTEE CAN IDENTIFY THE
SPECIFIC CAUSE(S) OF THE UPSET;
(II) THE PERMITTED FACILITY WAS AT THE TIME BEING PROPERLY OPERATED;
AND
(III) THE PERMITTEE SUBMITTED NOTICE OF THE UPSET AS REQUIRED IN
PARAGRAPH (F) OF THIS SECTION (24-HOUR NOTICE).
(IV) THE PERMITTEE COMPLIED WITH ANY REMEDIAL MEASURES REQUIRED UNDER
SECTION 122.7(D).
(4) BURDEN OF PROOF, IN ANY ENFORCEMENT PROCEEDING THER PERMITTEE
SEEKING TO ESTABLISH THE OCCURRENCE OF AN UPSET HAS THE BURDEN OF PROOF.
(APPLICABLE TO STATE NPDES PROGRAMS, SEE SECTION 123.7.)
THE FOLLOWING CONDITIONS, IN ADDITION TO THOSE SET FORTH IN SECTION
122.7 AND SECTION 122.60, APPLY TO ALL NPDES PERMITS WITHIN THE
CATEGORIES SPECIFIED BELOW.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 161 OF 225
COSTLE DM ADMINISTRATOR
EPA
113660
REGULATIONS
(A) EXISTING MANUFACTURING, COMMERCIAL, MINING AND SILVICULTRUAL
DISCHARGERS. IN ADDITION TO THE REPORTING REQUIREMENTS UNDER SECTION
122.7(1) AND SECTION 122.60, ALL EXISTING MANUFACTURING, COMMERCIAL,
MINING, AND SILVICULTURAL DISCHARGERS MUST NOTIFY THE DIRECTOR AS SOON
AS THEY KNOW OR HAVE REASON TO BELIEVE:
(1) THAT ANY ACTIVITY HAS OCCURRED OR WILL OCCUR WHICH WOULD RESULT
IN THE DISCHARGEOF ANY TOXIC POLLUTANT WHICH IS NOT LIMITED IN THE
PERMIT, IF THAT DISCHARGE WILL EXCEED THE HIGHEST OF THE FOLLOWING
"NOTIFICATION LEVELS."
(I) ONE HUNDRED MICROGRAMS PER LITR (100 MG/1);
(II) TWO HUNDRED MICROGRAMS PER LITR (200 MG/1) FOR ACROLEIN AND
ACRYLONITRILE; FIVE HUNDRED MICROGRAMS PER LITER (500 MG/1 FOR
24-DINITROPHENOL AND THE 20METHYL-4,6 DINTROPHENOL; AND ONE MILIGRAM
PER LITER (1 MG/1 FOR ANTIMONY;
(III) FIVE (5) TIME THE MAXIMUM CONCENTRATION VALUE REPORTED FOR THAT
POLLUTANT IN THE PERMIT APPLICATION IN ACCORDANCE WITH SECTION 122.53
(D)(7) OR SECTION 122.53 (D)(10; OR
(IV) THE LEVEL ESTABLISHED BY THE DIRECTOR IN ACCORDANCE WITH SECTION
122.62(F)..
(2) THAT THEY HAVE BEGUN OR EXPECT TO BEGIN TO USE OR MANUFACTURE AS
AN INTERMEDIATE OR FINAL PRODUCT OR BYPRODUCT ANY TOXIC POLLUTANT WHICH
WAS NOT REPORTED IN THE PERMIT APPLICATION UNDER SECTION 122.53 (D)(9).
(B) PUBLICLY OWNED TREATMENT WORKS. ALL POTWS MUST PROVIDE
ADEQUATE NOTICE TO THE DIRECTOR OF THE FOLLOWING:
(1) ANY NEW INTRODUCTION OF POLLUTANTS INTO THE POTW FROM AN INDIRECT
DISCHARGER WHICH WOULD BE SUBJECT TO SECTIONS 301 OR 306 OF CWA IF IT
WERE DIRECTLY DISCHARGING THOSE POLLUTANTS; AND
(2) ANY SUBSTANTIAL CHANGE IN THE VOLUME OR CHARACTER OF POLLUTANTS
BEING INTRODUCED INTO THE POTW BY A SOURCE INTRODUCING POLLUTANTS INTO
THE POTW AT THE TIME OF ISSUANCE OF THE PERMIT.
(3) FOR PURPOSES OF THIS PARAGRAPH, ADEQUATE NOTICE SHALL INCLUDE
INFORMATION ON (I) THE QUALITY AND QUANTITY OF EFFLUENT INTRODUCED INTO
THE POTW, AND (II) ANY ANTICIPATED IMPACT OF THE CHANGE ON THE QUANTITY
OF QUALITY OF EFFLUENT TO BE DISCHARGED FROM THE POTW.
(APPLICABLE TO STATE NPDES PROGRAMS, SEE SECTION 123.7.)
IN ADDITION TO THE CONDITIONS ESTABLISHEDUNDER SECTION 122.8(A), EACH
NPDES PERMIT SHALL INCLUDE CONDITIONS MEETING THE FOLLOWING REQUIREMENTS
WHEN APPLICABLE.
(A) TECHNOLOGY-BASED EFFLUENT LIMITATION AND STANDARDS BASED ON
EFFLUENT LIMITAIONS AND STANDARDS PROMULGATED UNDER SECTION 301 OF CWA
OR NEW SOURCE PERFORMANCE STANDARDS PROMULGATED UNDER SECTION 306 OF
CWA, ON CASE-BY-CASE EFFLUENT LIMITATIONS DETERMINED UNDER SECTION
402(A)(1) OF CWA, OR ON A COMBINATION OF THE TWO, IN ACCORDANCE WITH
SECTION 125.3. FOR NEW SOURCES OR NEW DISCHARGERS, THESE TECHNOLOGY
BASED LIMITATIONS AND STANDARDS ARE SUBJECT TO THE PROVISIONS OF SECTION
122.67 (D) PROTECTION PERIOD).
(B) OTHER EFFLUENT LIMITATIONS AND STANDARD UNDER SECTION 301, 302,
303, 307, 318, AND 405 OF CWA. IF ANY APPLICAELE TOXIC EFFLUENT
STANDARD OR PROHI0ITON (INCLUDING ANY SCHEDULE OF COMPLIANCE SPECIFIED
IN SUCH EFFLUENT STANDARD OR PROHIBITION) IS PROMULGATED UNDER SECTION
307(A) OF CWA FOR A TOXIC POLLUTANT AND THAT STANDARD OR PROIBITION IS
MORE STRINGENT THAN ANY LIMITATION ON THE POLLUTANT IN THE PERMIT, THE
DIRECTOR SHALL INSTITUTE PROCEEDINGS UNDER THESE REGULATIONS TO MODIFY
OR REVOKE THE REISSUE THE PERMIT TO CONFORM TO THE TOXIC EFFLUENT
STANDARD OR PROHIBITION. SEE ALSO SECTION 122.60(A).
(C) REOPENER CLAUSE: FOR ANY DISCHARGER WITIN A PRIMARY INDUSTRY
CATEGORY (SEE APPENDIX A), REQUIREMENTS UNDER SECTION 307(A)(2) OF CWA
AS FOLLOWS:
(1) ON OR BEFORE JUNE 30, 1981: (I) IF APPLICABLE STANDARDS OR
LIMITATIONS HAVE NOT YET BEEN PROMULGATED, THE PERMIT SHALL INCLUDE A
CONDITION STATING THAT, IF AN APPLICABLE STANDARD OR LIMITATION IS AN
APPLICABLE STANDARD OR LIMITATION IS PROMULGATED UNDER SECTION
301(B)(2)(C) AND (D), 304(B)(2), AND 307 (A)(2) AND THAT EFFLUENT
STANDARD OR LIMISTION IS MORE STRINGENT THAN ANY EFFLUENT LIMITATION IN
THE PERMIT OR CONTROLS A POLLUTANT NOT LIMITED IN THE PERMIT, THE PERMIT
SHALL BE PROMPTLY MODIFIED OR REVOKED AND REISSUED TO CONFORM TO THAT
EFFLUENT STANDARD OR LIMITATION.
(II)IF APPLICABLE STANDARDS OR LIMITATIONS HAVE BEEN PROMULGATED OR
APPROVED, THE PERMIT SHALL INCLUDE THOS STANDRDS OF LIMITATIONS. (IF
EPA APPROVES EXISTING EFFLUENT LIMITATIONS OR DECIDES NOT TO DEVELOP NEW
EFFLUENT LIMITATIONS, IT WILL PUBLISH A NOTICE IN THE FEDERAL REGISTER
THAT THE LIMITATIONS ARE "APPROVED" FOR THE PURPOSE OF THIS REGULATION.)
(2) AFTER JUNE 30, 1981. ANY PERMIT ISSUED SHALL INCLUDE EFFLUENT
LIMITATIONS AND A COMPLIANCE SCHEDULE TO MEET THE REQUIREMENTS OF
SECTION 301(B)(2)(A), (C),(D),(E) AND (F) OF CWA, WHETHER OR NOT
APPLICABLE EFFLUENT LIMITATIONS GUIDELINES HAVE BEEN PROMULGATED OR
APPROVED. THESE PERMITS NEED NOT INCORPORATE THE CLAUSE REQUIRED BY
PARAGRAPH (C)(1) OF THIS SECTION.
(3) THE DIRECTOR SHALL PROMPTLY MODIFY OR REVOKE THE REISSUE ANY
PERMIT CONTAINING THE CLAUSE REQUIRED UNDER PARAGRAPH (C)(1) OF THIS
SECTIONTO INCORPORATE AN APPLICABLE EFFLUENT STANDARD OR LIMITATION
UNDER SECTIONS 301(B)(2)(C) AND (D), 304(B)(2), WHICH IS PROMULGATED OR
APPROVED AFTER THE PERMIT IS ISSUED IF THAT EFFLUENT STANDARD OR
LIMITATION IS MORE STRINGENT THAN ANY EFFLUENT LIMITATION IN THE PERMIT,
OR CONTROLS A POLLUTANT NOT LIMITED TO THE PERMIT.
(D) WATER QUALITY STANDARDS AND STATE REQUIREMENTS: ANY REQUIREMENTS
IN ADDITION TO OR MORE STRINGENT THAN PROMULGATED EFFLUENT LIMIATIONS
GUIDELINES OR STANDARDS UNDER SECTIONS 3U1, 304, 30L, 307, 318, AND 405
OF CWA NECESSARY TO:
(1) ACHIEVE WATER QUALITY STANDARDS ESTABLISHED UNDER SECTION 3U3 OF
CWA:
(2) ATTAIN OR MAINTAIN A SPECIFIED WATER QUALITY THROUGH WATER
QUALITYRELATED EFFLUENT LIMITS ESTABLISHED UNDER SECTION 302 OF CWA;
(3) CONFORM TO THE CONDITIONS OF A STATE CERTIFICATION UNDER SECTION
401 OF CWA WHIC MEET THE REQUIREMENTSOF SECTION 124.53 WHEN EPA IS THE
PERMIT ISSUING AUTHORITY; HOWEVER, IF A STATE CERTIFICATION IS STAYED
BY A COURT OF COMPENTENT JURISDICTION OR APPROPRIATE STATE BOARD OR
AGENCY, EPA SHALL INCLUDE CONDITIONS IN THE PERMIT WHICH MAY 6E
NECESSARY TO MEET EPA'S OBLIGATION UNDER SECTION 301(B)(1)(C) OF CWA;
(4) CONFORM TO APPLICABLE WATER QUALITY REQUIREMENTS UNDER SECTION
401(A)(2) OF CWA WHEN THE DISCHARGE AFFECTS A STATE OTHER THAN THE
CERTIFYING STATE;
(5) INCORPORATE ANY MORE STRINGENT LIMITATIONS, TREATMENT STANDARDS,
OR SCHEDULE OF COMPLIANCE REQUIREMENTS ESTABLISHED UNDER FEDERAL OR
STATE LAW OR REGULATIONS IN ACCORDANCE WITH SECTION 301(B)(1)(C) OF CWA;
(6) ENSURE CONCSISTENCY WITH THE RQUIREMENTS OF A WATER QUALITY
MANAGEMENT PLAN APPROVED BY EPA UNDER SECTION 208(B) OF CWA;
(7) INCORPOATE SECTION 403(C) CRITERIA UNDER PART 125, SUBPART M, FOR
OCEAN DISCHARGES;
(8) INCORPOATE ALTERNATIVE EFFLUENT LIMITATIONS OR STANDARDS WHERE
WARRANTED BY "FUNDAMENTALLY DIFFERENT FACTORS," UNDER 40 CFR PART 125,
SUBPART D;
(9) INCORPORATE ANY OTHER REQUIREMENTS, CONDITIONS, OR LIMITATIONS
INTO A NEW SOURCE PERMIT UNDER THENATIONAL ENIVRONMENTAL POLICY ACT 42
U.S.C SECTIONS 4321 ET SEQ. AND SECTION 511 OF CWA, WHEN EPA IS THE
PERMIT ISSUING AUTHORITY (SEE SECTION 122.66).
(E) TOXIC POLLUTATNTS: LIMITATIONS ESTABLISHED UNDER PARAGRAPHS
(A),(B), OR (D) OF THIS SECTION, TO CONTROL POLLUTANTS MEETING THE
CRITERIA LISTED IN PARAGRAPH (E)(1) OF THIS SECTION.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 162 OF 225
COSTLE DM ADMINISTRATOR
EPA
113661
REGULATIONS
LIMITATIONS WILL BE ESTABLISHED IN ACCORDANCE WITH PARAGRAPH (E)(2)
OF THIS SECTION. AN EXPLANATION OF THE DEVELOPMENT OF THESE LIMITATIONS
SHALL BE INCLUDED IN THE FACT SHEET UNDER SECTION 122.56 (B)(1)(I).
(1) LIMITATIONS MUST CONTROL ALL TOXIC POLLUTANTS WHICH:
(I) THE DIRECTOR DETERMINES (BASED ON INFORMATION REPORTED IN A
PERMIT APPLICATION UNDER SECTION 122.53(D)(7) OR (10) OR IN A
NOTIFICATION UNDER SECTION 122.61(A)(1) OR ON OTER INFORMATION) ARE OR
MAY BE DISCHARGED AT A LEVEL GREATER THAN THE LEVEL WHICH CAN BE
ACHIEVED BY THE TECHNOLOGY=BASED TREATMENT REQUIREMENTS APPROPRIATE TO
THE PERMITTEE UNDER SECTION 125.3(C); OR
(II) THE DISCHARGER DOES OR MAY USE OR MANUFACUTRE AS AN INTERMEDIATE
OR FINAL PRODUCT OR BYPRODUCT.
(2) THE REQUIREMENT THAT THE LIMITATIONS CONTROL THE
POLLUTANTSMEETING THE CRITERIA OF PARAGRAPH (E)(1) OF THIS SECTION WILL
BE SATISFIED BY;
(I) LMITATIONS ON THOSE POLLUTANTS; OR
(II) LIMITATIONS ON OTHER POLLUTANTS WHICH, IN THE JUDGEMENT OF THE
DIRECTOR, WILL PROVIDE TREATMENT OF THE POLLUTANTS UNDER PARAGRAPH
(E)(1) OF THIS SECTION TO THE LEVELS REQUIRED BY SECTION 125.3(C).
(F) NOTIFICATION LEVEL: A "NOTIFICATION LEVEL" WHICH EXCEEDS THE
NOTIFICATION LEVEL OF SECTION 122.61(A)(1)(I), (II), OR (III), UPON A
PETITION FROM THE PERMITTEE OR ON THE DIRECTOR'S INITIATIVE. THIS NEW
NOTIFICATION LEVEL MAY NOT EXCEED THE LEVEL WHICH CAN BE ACHIEVED BY THE
TECHNOLOGY-BASED TREATMENT REQUIREMENTS APPROPRIATE TO THE PERMITTEE
UNDER SECTION 125.3(C).
(G) TWENTY-FOUR HOUR REPORTING: POLLUTANTS FOR WHICH THE PERMITTEE
MUST REPORT VIOLATIONS OF MAXIMUM DAILY DISCHARGE LIMITATIONS UNDER
SECTION 122.60(F)(3) (240HOUR REPORTING) SHALL BE LISTED AS SUCH IN THE
PERMIT. THIS LIST SHALL INCLUDE ANY TOXIC POLLUTANT OR HAZARDOUS
SUBSTANCE, OR ANY POLLUTANT SPECIFICALLY IDENTIFIED AS THE METHOD TO
CONTROL A TOXIC POLLUTANT OR HAZARDOUS SUBSTANCE.
(H) DURATIONS FOR PERMITS, AS SET FORTH IN SECTIONS 122.9(A) AND
122.64.
(I) MONITORING REQUIREMENTS: IN ADDITION TO SECTION 122.11, THE
FOLLOWING MONITORING REQUIREMENTS:
(1) TO ASSURE COMPLIANCE WITH PERMIT LIMITATIONS, RQUIREMENTS TO
MONITOR:
(I) THE MASS (OR OTHER MEASUREMENT SPECIFIED IN THE PERMI) FOR EACH
POLLUTANT LIMITED IN THE PERMIT;
(II) THE VOLUME OF EFFLUENT DISCHARGE FOR EACH OUTFALL;
(III) OTHER MEASUREMENTS AS APPROPRIATE; INCLUDING POLLUTANTS IN
INTERNAL WASTE STREAMS UNDER SECTION 122.63(I); POLLUTANTS IN INTAKE
WATER FOR NET LIMITATIONS UNDER SECTION 122.63(F); FREQUENCY, RATE OF
DISCHARGE, ETC., FOR NONCONTINUOUS DISCHARGES UNDER SECTION 122.63(E);
AND POLLUTANTS SUBJECT TO NOTIFICATION REQUIREMENTS UNDER SECTION
122.61(A).
(IV) ACCORDING TO TEST PROCEDURES APPROVED UNDER 40 CFR PART 13Y FOR
THE ANALYSES OF POLLUTANTS HAVING APPROVED METHODS UNDER THE PART, AND
ACCORDING TO A TEST PROCEDURE SPECIFIED IN THE PERMIT FOR POLLUTANTS
WITH NO APPROVED METHODS.
(2) REQUIREMENTS TO REPORT MONITORING RESULTS WITH A FREQUENCY
DEPENDEN ON THE NATURE AND EFFECT OF THE DISCHARGE, BUT IN NO CASE LESS
THAN ONE A YEAR.
(J) PRETREATMENT PROGRAM FOR POTWS. REQUIRMENTS FOR POTWS TO:
(1) IDENTIFY, IN TERMS OF CHARACTER AND VOLUMEN OF POLLUTANTS, ANY
SIGNIFICANT INDIRECT DISCHARGERS INTO THE POTW SUBJECT TO PRETREATMENT
STANDARDS UNDER SECTION 307(B) OF CWA AND 40 CFR PART 403.
(2) SUBMIT A LOCAL PROGRAM WHEN REQUIRED BY AND IN ACCORDANCE WITH 40
CFR PART 403 TO ASSURE COMPLIANCE WITH PRETREATMENT STANDARDS TO THE
EXTEN APPLICABLE UNDER SECTION 307(B). THE LOCAL PROGRAM SHALL BE
INCORPORETED INTO THE PERMIT AS DESCRIBED IN 40 CFR PART 403. THE
PROGRAM SHALL REQUIRE ALL INDIRECT DISCHARGERS TO THE POTW TO COMPLY
WITH THE REPORTING REQUIREMENTS OF 40 CFR PART 403.
(K) BEST MANAGEMENT PRACTICES TO CONTROL OR ABATE THE DISCHARGE OF
POLLUTANTS WHEN:
(1) AUTHORIZED UNDER SECTION 304(E) OF CWA FORTHE CONTROL OF TOXIC
POLLUTANTS AND HAZARDOUS SUBSTANCES FROM ANICLLARY ACTIVITIES;
(2) NUMBER EFFLUENT LIMITATIONS ARE INFEASIBLE, OR
(3) THE PRACTICES ARE REASONABLY NECESSARY TO ACHIEVE EFFLUENT
LIMITATIONS AND STANDARDS OR TO CARRY OUR THE PURPOSES AND INTENT OF
CWA.
(1) REISSUED PERMITS:
(I) EXCEPT AS PROVIDED IN PARAGRAPH (1)(2) OF THIS SECTION WHEN A
PERMIT IS RENEWED OR REISSUED, INTERIM LIMITATATIONS, STANDARDS OR
CONDITIONS WHICH ARE AT LEAST AS STRINGENT AS THE FINAL LIMITATIONS,
STANDARDS, OR CONDITIONS IN THE PREVIOUS PERMIT (UNLESS THE
CIRCUMSTANCES ON WHICH THE PREVIOUS PERMIT WAS BASED HAVE MATERIALLY AND
SUBSTANTIALLY CHANGED SINCE THE TIME THE PERMIT WAS ISSUED AND WOULD
CONSTITUTE CASUE FOR PERMIT MODIFICATION OR REVOCTION AND REISSUANCE
UNDER SECTION 122.15).
(2) WHEN EFFLUENT LIMITATIONS WERE IMPOSED UNDER SECTION 402(A) (1)
OF CWA IN A PREVIOUSLY ISSUED PERMIT AND THESE LIMITATIONS AREMORE
STRINGENT THAN THE SUBSEQUENTLY PROMULGATED EFFLUENT GUIDELINES, THIS
PARAGRAPH SHALL APPLY UNLESS:
(I) THE DISCHARGER HAS INSTALLED THE TREATMENT FACILITIES REQUIRED TO
MEET THE EFFLUENT LIMITATIONS IN THE PREVIOUS PERMIT AND HAS PROPERLY
OPERATED AND MAINTAINED THE FACILITIES BUT HAS NEVERTELESS BEEN UNABLE
TO ACHIEVE THE PREVIOUS EFFLUENT LIMIATIONS. IN THIS CASE THE
LIMITATIONS IN THE RENEWED OR REISSUEDPERMIT MAY REFLECT THE LEVEL OF
POLLUTANT CONTROL ACTUALLY ACHIEVED (BUT SHALL NOT BE LESS STRINGENT
THAN REQUIRED BY THE SUBSEQUENTLY PROMULGATED EFFLUENT LIMITATION
GUIDELINES);
(II) IN THE CASE OF AN APPROVED STATE, STATE LAW PROHIBITS PERMIT
CONDITIONS MORE STRINGENT THAN AN APPLICABLE EFFLUENT LIMITATIONS
GUIDELINE;
(III) THE SUBSEQUENTLY PROMULGATED EFFLUENT GUIDELINES ARE BASED ON
BEST CONVENTIONAL POLLUTANT CONTROL TECHNOLOGY (SECTION 301 (B)(2)(E) OF
CWA);
(IV) THE CIRCUMSTANCES ON WHICH THE PREVIOUS PERMIT WAS BASED HAVE
MATERIALLY AND SUBSTANTIALLY CHANGED SINCE THE TIME THE PERMIT WAS
ISSUED AND WOULD CONSTITUTE CAUSE FOR PERMIT MODIFICATION OR REVOCATION
AND REISSUANCE UNDER SECTION 122.15; OR
(V) THERE IS INCREASED PRODUCTION AT THE FACILITY WHICH RESULTS IN
SIGNIFACNT REDUCTION IN TREATMENT EFFICIENCY, IN WHICH CASE THE PERMIT
LIMITATIONS WILL BE ADJUSTED TO REFLECT ANY DECREASED EFFICIENY
RESULTING FROM INCREASED PRODUCTION AND RAW WASTE LOADS, BUT IN NO EVENT
SHALL PERMIT LIMITATIONS BE LESS STRINGENT THAN THOS REQUIRED BY
SUBSEQUENTLY PROMULGATED STANDARDS AND LIMITATIONS
(M) PRIVATELY OWNED TREATMENT WORKS. FOR A PRIVATELY OWNED TREATMENT
WORKS, ANY CONDITIONS EXPRESSLY APPLICABLE TO ANY USER, AS A LIMITED
CO-PERMITTEE, THAT MAY BE NECESSARY IN THE PERMIT ISSUED TO THE
TREATMENT WORKS TO ENSURE COMPLIANCE WITH APPLICABLE REQUIREMENTS UNDER
THIS PART. ALTERNATIVELY, THE DIRECTOR MAY ISSUE SEPARATE PERMITS TO
THE TREATMENT WORKS AND TO ITS USERS, OR MAY REQUIRE A SEPARATE PERMIT
APPLICATION FROM ANY USER. THE DIRECTOR'S DECISION TO ISSUE A PERMIT
WITH NO CONDITIONS APPLICABLE TO ANY USER, TO IMPOSE CONDITIONS ON ONE
OR MORE USERS, TO ISSUE SEPARATE PERMITS, OR TO REQUIRE SEPARATE
APPLICCATIONS, AND TO BASIS FOR THAT DECISION, SHALL BE STATED IN THE
FACT SHEET FOR THE DRAFT PERMIT FOR THE TREATMENT WORKS.
(N) GRANTS. ANY CONDITIONS IMPOSED IN GRANTS MADE BY THE
ADMINISTRATOR TO POWS UNDER SECTION 201 AND 204 OF CWA WHICH ARE
REASONABLY NECESSARY FOR THE ACHIEVEMENT OF EFFLUENT LIMITATIONS UNDER
SECTION 301 OF CWA.
(O) SEWAGE SLUDGE. REQUIREMENTS UNDER SECTION 405 OF CWA GOVERNING
THE DISPOSAL OF SEWAGE SLUDGE FROM PUBLICLY OWNED TREATMENT WORKS, IN
ACCORDANCE WITH ANY APPLICABLE REGULATIONS.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 163 OF 225
COSTLE DM ADMINISTRATOR
EPA
113662
REGULATIONS
(P) COAST GUARD. WHEN A PERMIT IS ISSUED TO A FACILITY THAT MAY
OPERATE AT CERTAIN TIMES AS A MEANS OF TRANSPORTATION OVER WATER, A
CONDITION THAT THE DISCHARGE SHALL COMPLY WITH ANY APPLICABLE
REGULATIONS PROMULGATED BY THE SECRETARY OF THE DEPARTMENT IN WHICH THE
COAST GUARD IS OPERATING, THAT ESTABLISH SPECIFICATION FOR SAFE
TRANSPORTATION, HANDLING, CARRIAGE, AND STORAGE OF POLLUTANTS.
(Q) NAVIGATION. ANY CONDITIONS THAT THE SECRETARY OF THE ARMY
CONSIDERS NECESSARY TO ENSURE THAT NAVIGATION AND ANCORAGE WILL NOT BE
SUBSTANTIALLY IMPAIRED, IN ACCORDANCE WITH SECTION 124.58.
(APPLICABLE TO STATE NPDES PROGRAMS, SEE SECTION 123.7.)
(A) OUTFALLS AND DISCHARGE POINTS. ALL PERMIT EFFLUENT LIMITATIONS,
STANDDARDS, AND PROHIBITIONS SHALL BE ESTABLISHED FOR EACH OUTFALL OR
DISCHARGE POINT OF THE PERMITTED FACILITY, EXCEPT AS OTHERWISE PROVIDED
UNDER SECTION 122.62(K) (2)(BMPS WHERE LIMITATIONS ARE INFEASIBLE) AND
PARAGRAP (I) OF THIS SECTION (LIMITATIONS ON INTERNAL WASTE STREAMS).
(B) PRODUCTION-BASED LIMITATIONS. (1) IN THE CASE OFPOTWS, PERMIT
LIMITATIONS, STANDARDS, OR PROHIBITIONS SHALL BE CALCULATED BASED ON
DESIGN FLOW.
(2) EXCEPT IN THE CASE OF POTWS, CALCULATION OF ANY PERMIT
LIMITATIONS, STANDARDS, OR PROHIBTIONS WHICH ARE BASED ON PRODUCTION (OR
OTHER MEASURE OR OPERATION) SHALL BE BASED NOT UPON THE DESIGNED
PRODUCTION CAPACITY BUT RATHER UPON A REASONABLE MEASURE OF ACTUAL
PRODUCTION OF THE FACILITY, SUCH AS THE PRODUCTION DURING HIGH MONTH OF
THE PREVIOUS YEAR, OR THE MONTHLY AVERAGE FOR THE HIGHEST OF THE
PREVIOUS 5 YEARS. FOR NEW SOURCES OR NEW DISCHARGERS, ACTUAL PRODUCTION
SHALL BE ESTIMATED USING PROJECTED PRODUCTION THE TIME PERIOD OF THE
MEASURE OF PRODUCTION SHALL CORRESPOND TO THE TIME PERIOD OF THE
CALCULTATED PERMIT LIMITATIONS; FOR EXAMPLE, MONTHLY PRODUCTION SHALL
BE USED TO CALCULATE AVERAGE MENTHLY DISCHARGE LIMITATIONS.
(C) METALS. ALL PERMIT EFFLUENT LIMITATIONS, STANDARDS, OR
PROHIBITIONS FOR A METAL SHALL BE EXPRESSED IN TERMS OF THE TOTAL METAL
(THAT IS, THE SUM OF THE DISSOLVED AND SUSPENDED FRACTIONS OF THE METAL)
UNLESS:
(1) AN APPLICABLE EFFLUENT STANDARD OR LIMITATION HAS BEE PROMULGATED
UNDER CWA AND SPECIFIES THE LIMITATION FOR THE METAL IN THE DISSOLVED OR
VALENT FORM; OR
(2) IN ESTABLISHING PERMIT LIMITATIONS ON A CASE-BY-CASE BASIS UNDER
SECTION 125.3, IT IS NECESSARY TO EXPRESS THE LIMITATION ON THE METAL IN
THE DISSOLVED OR VALENT FORM IN ORDER TO CARRY OUT THE PROVISIONS OF
CWA.
(D) CONTINUOUS DISCHARGES. FOR CONTINUOUS DISCHARGES ALL PERMIT
EFFLUENT LIMITATIONS, STANDARDS, AND PROHIBITIONS, INCLUDING THOSE
NECESSARY TO ACHIEVE WATER QUALITY STANDARDS, SHALL UNLEE IMPROCTICABLE
BE STATED AS:
(1) MAXIMUM DAILY AND AVERAGE MONTHLY DISCHARGE LIMITATIONS FOR ALL
DISCHARGERS OTHER THAN PUBLICLY OWNED TREATMENT WORKS; AND
(2) AVERAGE WEEKLY AND AVERAGE MONTHLY DISCHARGE LIMITATIONS FOR
POTWS.
(E) NON-CONTINUOUS DISCHARGES. DISCHARGES WHICH ARE NOT CONTINUOUS,
AS DEFINED IN SECTION 122.3- SHALL BE PARTICULARLY DESCRIBED AND
LIMITED, CONSIDERING THE FOLLOWING FACTORS, AS APPROPRIATE;
(1) FREQUENCY (FOR EXAMPLE, A BATCH DISCHARGE SHALL NOT OCCURE MORE
THAN ONCE EVERY 3 WEEKS);
(2) TOTAL MASS (FOR EXAMPLE, NOT TO EXCEED 100 KILGRAMS OF ZINC AND
200 KILGRAMS OF CHROMIUM PER BATCH DISCHARGE);
(3) MAXIMUM RATE OF DISCHARGE OF POLLUTANTS DURING THE DISCHARGE (FOR
EXAMPLE, NOT TO EXCEED 2 KILGRAMS OF ZINC PER MINUTE); AND
(4) PROHIBITION OR LIMITATION OF SPECIFIED POLLUTANTS 0Y MASS,
CONCENTRATION, OR OTHER APPROPRAITE MEASURE (FOR EXAMPLE, SHALL NOT
CONTAIN AT ANY TIME MORE THEN 0.1 MG/LZINC OR MORE THAN 250 GRAMS (1/4
KILGRAM) OF ZINC IN ANY DISCHARGE).
(F) MASS LIMITATIONS. (1) ALL POLLUTANTS LIMITED IN PERMITS SHALL
HAVE LIMITATIONS, STANDARDS, OR PROHIBITIONS EXPRESSED IN TERMS OF MASS
EXCEPT:
(I) FOR PH, TEMPERATURE, RADIATION, OR OTER POLLUTATNS WHICH
CANNOT APPROPRIATELY BE EXPRESSED BY MEASS;
(II) WHEN APPLICABLE STANDARDS AND LIMITATIONS ARE EXPRESSED IN TERMS
OF OTHER UNITS OF MEASUREMENT; OR
(III) IF IN ESTABLISHING PERMIT LIMITATIONS ON A CASE-BY-CASE BASIS
UNDER SECTION 125.3, LIMITATIONS EXPRESSED IN TERMS OF MASS ARE
INFEASIBLE BECAUSE THE MASS OF THE POLLUTANT DISCHARGED CANNOT BE
RELATED TO A MEASURE OF OPERATION (FOR EXAMPLE, DISCHARGES OF TSS FROM
CERTAIN MINING OPERATIONS), AND PERMIT CONDITIONS ENSURE THAT DILUTION
WILL NOT BE USED AS A SUBSTITUTE FOR TREATMENT.
(2) POLLUTANTS LIMITED IN TERMS OF MASS ADDITIONALLY MAY BE LIMITED
IN TERMS OF OTHER UNITS OR MEASUREMENT, AND THE PERMIT SHALL REQUIRE THE
PERMITTEE TO COMPLY WITH BOTH LIMITATIONS.
(G) POLLUTANTS IN INTAKEWATER. EXCEPT AS PROVIDED IN PARAGRAPH (H)
OF THIS SECTION, EFFLUENT LIMITATIONS IMPOSED IN PERMITS SHALLNT BE
ADJUSTED FOR POLLUTANTS IN THE INTAKE WATER.
(H) NET LIMIATIONS. (1) UPON REQUEST OF THE DISCHARGER, EFFLUENT
LIMITATIONS OR STANDARDS IMPOSED IN A PERMIT SHALL BE CALCULATED
ON A "NET" BASIS; THAT IS ADJUSTED TO REFLECT CREDIT FOR
POLLUTANTS IN THE DISCHARGER'S INTAKE WATER, IF THE DISCHARGER
DEMONSTRATES THAT ITS INTAKE WATER IS DRAWN FROM THE SAME
BODY OF WATER INTO WHICH THE DISCHARGE IS MADE AND IF:
(I)(A) THE APPLICABLE EFFLUENT LIMITATIONS AND STANDARDS CONTAINED IN
4U CFR SUBCHAPTER N SPECIFICALLY PROVIDE THAT THEY SHALL BE APPLIED ON A
NET BASIS; OR
(B) THE DISCHARGER DEMONSTRATES THAT POLLUTANTS PRESETN IN THE INTAKE
WATER WILL NOT BE ENTIRELY REMOVED BY THE TREATMENT SYSTEMS OPERATED BY
THE DISCHARGER;AND
(II) THE PERMIT CONTAINS CONDITIONS REQUIREING;
(A) THE PERMITTEE TO CONDUCT ADDITIONS MONITORING (FOR EXAMPLE, FOR
FLOW AND CONCENTRATION OF POLLUTANTS) AS NECESSARY TO DETERMINE
CONTINUED ELIGIBILITY FOR AND COMPLIANCE WITH ANY SUCH ADJUSTMENTS; AND
(B) THE PERMITTEE TO NOTIFY THE DIRECTOR IF ELIGIBILITY FOR AN
ADJUSTMENT UNDER THIS SECTION HAS BEEN ALTERED OR NO LONGER EXISTS. IN
THAT CASE, THE PERMIT MAY BE MODIFIED ACCORDINGLY UNDER SECTION 122.15.
(2) PERMIT EFFLUENT LIMITATIONS OR STANDARDS ADJUSTED UNDER THIS
PARAGRAPH SHALL BE CALCULATED ON THE BASIS OF THE AMOUNT OF POLLUTANTS
PRESENT AFTER ANY TREATEMTN STEPS HAVE BEEN PERFORMED ON THE INTAKE
WATER BY OR FOR THE DISCHARGER. ADJUSTMENTS UNDER THIS PARAGRAPH SHALL
BE GIVEN ONLY TO THE EXTENT THAT POLLUTANTS IN THE INTAKE WATERWHICH ARE
LIMITED IN THE PERMIT ARE NOT REMOVED BY THE TREATMENT TECHNOLOGY
EMPLOYED BY THE DISCHARGER. IN ADDITION, EFFLUENT LIMITATIONS OR
STANDARDS SHALL NOT BE ADJUSTED TO THE EXTENT THATTHE POLLUTANTS IN THE
INTAKE WATER VARY PHYSICALLY, CHEMICALLY, OR 0IOLOGICALLY FROM THE
POLLUTANT LIMITED IN THE PERMIT. NOR SHALL EFFLUENT LIMITATIONS OR
STANDARDS BE ADJUSTED TO THE EXTENT THAT EH DISCHARGER SIGNIFICANTLY
INCREASES CONCENTRATIONS OF POLLUTANTS IN THE INTAKE WATER, EVEN THOUGH
THE TOTAL AMOUNT OF POLLUTATNTS MIGHT REMAIN THE SAME.
(I) INTERNAL WASTE STREAMS. (1) WHEN PERMIT EFFLUENT LIMITATIONS OR
STANDARDS IMPOSED AT THE POINT OF DISCHARGE ARE IMPRACTICAL OR
INFEASIBLE, EFFLUENT LIMITATIONS OR STANDARDS FOR DISCHARGES OF
POLLUTANTS MAY BE IMPOSED ON INTERNAL WASTE STREAMS BEFORE MIXING WITH
OTHER WASTE STREAMS OR COOLING WATER STREAMS. IN THOS INSTANCE, THE
MONITORING REQUIRED BY SECTION 122.6(I) SHALL ALSO BE APPLIED TO THE
INTERNAL WASTE STREAMS.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 164 OF 225
COSTLE DM ADMINISTRATOR
EPA
113663
REGULATIONS
(2) LIMITS ON INTERNAL WASTE STREAMS WILL BE IMPOSED ONLY WHEN THE
FACT SHEET UNDER SECTION 124.56 SETS FOR THE EXCEPTIONAL CIRCUMSTANCES
WHICH MAKE SUCH LIMITATIONS NECESSARY, SUCH AS WHEN THE FINAL DISCHARGE
POINT IS INACCESSIBLE (FOR EXAMPLE UNDER 10 METERS OF WATER), THE WASTES
AT THE POINT OF DISCHARGE ARE SO DILUTED AS TO MAKE MONITORING
IMPRACTICABLE, OR THE INTERFERENCES AMONG POLLUTANTS AT TEE POINT OF
DISCHARGEWOULD MAKE DETECTION OR ANALYSIS IMPRACTICABLE.
(J) DISPOSAL OF POLLUTANTS INTO WELLS, INTO POTWS, OR BY LAND
APPLICATION. PERMIT LIMITATIONS AND STANDARDS SHALL BE CALCULATED AS
PROVIDED IN SECTION 122.65.
(APPLICABLE TO STATE NPDES PROGRAMS, SEE SECTION 123.7.)
(A) ON OR BEFORE JUNE 3U, 1981, ANY PERMIT ISSUED TO A DISCHARGER IN
A PRIMARY INDUSTRY CATEGORY (SEE APPENDIX A);
(1) SHALL MEET ONE OF THE FOLLOWING CONDITIONS:
(I) EXPIRE ON JUNE 30, 1981;
(II) INCORPORATE EFFLUENT STANDARDS AND LIMITATIONS APPLICA0LE TO THE
DISCHARGER WHICH HAVE BEEN PROMULGATED OR APPROVED UNDER SECTIONS
301(B)(2)(C) AND (D), 304(B)(2), AND 307(A)(2) OF CWA; OR
(III) INCORPORATE THE "REOPENER CLAUSE" REQUIRED BY SECTION
122.62(C)(1), AND EFFLUENT LIMITATIONS TO MEET THE REQUIREMENTS OF
SECTIONS 301(B)(2)(A),(C),(D),(E), AND (F) OF CWA.
(2) SHALL NOT BE WRITTEN TO EXPIRE AFTER JUNE 30, 1981 UNLESS THE
DISCHARGER HAS SUBMITTED TO THE DIRECTOR THE INFORMATION REQUIRED BY
SECTION 122.53(D)(7)(II).
(B) AFTER JUNE 30, 1981 A PERMIT MAY BE ISSUED FOR THE FULL TERM IF
THE PERMIT INCLUDES EFFLUENT LIMITATIONS AND A COMPLIANCE SCHEDULE TO
MEET THE REQUIREMENTS OF SECTION 301(B) (2)(1), (C),(D),(E),AND (F) OF
CWA, WHETHER OR NOT APPLICABLE EFFLUENT LIMITATIONS GUIDELINES HAVE BEEN
PROMULGATED OR APPROVED.
(C) A DETERMINATION THAT A PARTICULAR DISCHARGER FALLS WITHIN A GIVEN
INDUSTRIAL CATEGORY FOR PURPOSES OF SETTING A PERMIT EXPIRATION DATE
UNDER PARAGRAPH (0) OF THIS SECTION IS NOT CONCLUSIVE AS TO THE
DISCHARGER'S INCLUDION IN THAT INDUSTRIAL CATEGORY FOR ANY OTHER
PURPOSES, AND DOES NOT PREJUDICE ANY RIGHTS TO CHALLENGE OR CHANGE THAT
INCLUSION AT THE TIME THAT A PERMIT BASED ON THAT DETERMINATION IS
FORMULATED.
(APPLICABLE TO STATE NPDES PROGRAMS, SEE SECTION 123.7.)
(A) WHEN PART OF A DISCHARGCR'S PROCESS WASTEWATER IS NOT BEING
DISCHARGED INTO WATER OF THE UNITED STATES OR CONTIGUOUS ZONE
BECAUSE IT IS DISPOSED INTO A WELL, INTO A POTW, OR BY LAND
APPLICATION THEREBY REDUCING THE FLOW OF LEVEL OF POLLUTANTS
BEING DISCHARGED INTO WATERS OF THE UNITED STATES, APPLICABEL
EFFLUENTS STANDARDS AND LIMITATIONS FOR THE DISCHARGE IN AN
NPDES PERMIT SHALL BE ADJUSTED TO REFLECT THE REDUCED RAW
WASTE RESULTING FROM SUCH DISPOSAL. EFFLUENT LIMITATIONS
AND STANDARDS IN THE PERMIT SHALL BE CACULATED BY ONE OF THE
FOLLOWING METHODS:
(1) IF NON OF THE WASTE FROM A PARTICULAR PROCESS IS DISCHARGED INTO
WATERS OF THE UNITED STATES, AND EFFLUENT LIMITATION GUIDELINES PROVIDE
SEPARATE ALLOCATION FOR WASTES FROM THAT PROCESS, ALL ALLOCATIONS FOR
THE PROCESS SHALL BE ELIMINATED FROM CALCULATION OF PERMIT EFFLUENT
LIMITATIONS OR STANDARDS.
(2) IN ALL CASES OTHER THAN THOSE DESCRIBED IN PARAGRAPH (A) (1) OF
THIS SECTION, EFFLUENT LIMITATIONS SHALL BE ADJUSTED BY MULTIPLYING THE
EFFLUENT LIMITATIONS DERIVED BY APPLYING EFFLUENT LIMITATION GUIDELINES
TO THE TOTAL WASTE STREAM BY THE AMOUNT OF WASTEWATER FLOW TO 0E TREATED
AND DISCHARGED INTO WATER OF THE UNITED STATES, AND DIVIDING THE RESULT
BY THE TOTAL WASTEWATER FLOW. EFFLUENT LIMITATIONS AND STANDARDS SO
CALCULATED MAY BE FURTHER ADJUSTED UNDER PART 125, SUBPART D TO MAKE
THEM MORE STRINENT IF DISCHARGES TO WELLS, PUBLICLY OWNED TREATMENT
WORKS, OR BY LAND APPLICATION CHANGE THE CHARACTER OR TREATABILITY OF
THE POLLUTANTS BEING DISCHARGED TO RECEIVING WATERS.
THIS METHODS MAY BE ALGEBRAICALLY EXPRESSED AS:
EQUATION OMITTED WHERE P IS THE PERMIT EFFLUENT LIMITATION, E IS THE
LIMITATION DERIVED BY APPLYING EFFLUENT GUIDELINES TO THE TOTAL WASTE
STREAM, N IS THE WASTEWATER FLOW TO BE TREATED AND DISCHARGED TO WATERS
OF THE UNITD STATES, AND T IS THE TOTAL WASTEWATER FLOW.
(B) PARAGRAPH (A) OF THIS SECTION SAHLL NOT APPLY TO THE EXTENT THAT
PROMULGATED EFFLUENT LIMITATIONS GUIDELINES:
(1) CONTROL CONCENTRATIONS OF POLLUTANTS DISCHARGED BUT NOT MASS OR
(2) SPECIFY A DIFFERNT SPECIFIC TECHNIQUE FOR ADJUSTING EFFLUENT
LIMITATIONS TO ACCOUNT FOR WELL INJECTION, LAND APPLICATION, OR
DISPOSAL INTO POTWS.
(C) PARAGRAPH (A) OF THIS SECTION DOES NOT ALTER A DISCHARGER'S
OBLIGATION TO MEET ANY MORE STRINGENT REQUIREMENTS ESTABLISHED UNDER
SECTION 122.7, SECTION 122.8, SECTION 122.60, SECTION 122.61, AND
SECTION 122.62.
(A) DEFINITIONS. (1) "NEW SOURCE" AND NEW DICHARGER" ARE DEFINED IN
SECTION 122.3.
(2) "SOURCE" MEANS ANY 8UILDING, STRUCTURE, FACILITY, OR INSTALLATION
FROM WHICH THERE IS OR MAY BE A DISCHARGE OF POLLUTANTS.
(3) "ESTING SOURCE" MEANS ANY SOURCE WHICH IS NOT A SOURCE OR A NEW
DISCHARGER.
(4) "SITE" IS DEFINED IN SECTION 122.3:
(5) "FACILITIES OR EQUIPMENT" MEANS BUILDING, STRUCTURES,
PROCESS OR PRODUCTION EQUIPMENT OR MACHINERY WHICH FORM A
PERMANENT PART OF THE NEW SOURCE AND WHICH WILL BE USED IN ITS
OPERATION, IF THESE FACILITIES OR EQUIPMENT ARE SUCH VALUE AS
TO REPRESENT A SUBSTANTIAL COMMITMENT OT CONSTRUC. IT EXLUDES
FACILITIES OR EQUIPMENT USED IN CONNECTION WITH FEASIBILITY,
JENGINEERING, AND DESIGN STUDIES REGARDING THE SOURCE OR WATER
POLLUTION TREATEMETN FOR THE SOURCE.
(B) CRITERIA FOR NEW SOURCE DETERMINATION. (1) THE FOLLOWING
CONSTRUCTION ACTIVITIES RESULT IN A NEW SOURCE:
(I) CONSTRUCTION OF A SOURCE ON A SITE AT WHICH NO OTHER SOURCE IS
LOCATED, OR
(II) CONSTRUCTION ON A SITE AT WHICH ANOTHER SOURCE IS LOCATED OF A
BUILDING, STRUCTURE, FACILITY, OR INSTALLATION FROM WHICH THERE IS OR
MAY BE A DISCHARGE OF POLLUTANTS IF:
(A) THE PROCESS OR PORDUCTION EQUIPMENT THAT CAUSES THE DISCHARGE OF
POLLUTANTS FROM THE EXISTING SOURCE IS TOTALLY REPLACED BY THIS
CONSTRUCTION, OR
(B) THE CONSTRUCTION RESULTS IN A CHANGE IN THE NATURE OR QUANTITY OF
POLLUTANTS DISCHARGED.
(2) CONSTRUCTION ON A SITE AT WHICH AN EXISTING SOURCE IS LOCATED
RESULTS IN A MODIFICATION SUBJECT TO SECTION 122.15 RATHER THAN A NEW
SOURCE IF THE CONSTRUCTION DOES NOT CREATE A NEW BUILDING, STRUCTURE,
FACILITY, OR INSTALLATION FROM WHICH THERE IS OR MAY BE A DISCHARE OF
POLLUTANTS BUT OTHERWISE ALTERNS, REPLACES, OR ADDS TO EXISTING PROCESS
OR PRODUCTION EQUIPMENT.
(3) CONSTRUCTION OF A NEW SOURCE AS DEFINED UNDER SECTION 122.3 HAS
COMMENCED IF THE OWNER OR OPERATOR HAS: (I) BEGUN, OR CASUED TO BEGIN
AS PART OF A CONTINOUS ON-SITE CONSTRUCTION PROGRAM:
(A) ANYPLACEMENT, ASSEMBLY, OR INSTALLATION OF FACILITIES OR
EQUIPMENT; OR
(B) SIGNIFICANT SITE PREPARTION WORK INCLUDING CLEARING, EXCAVATION,
OR REMOVAL OF EXISTING BUILDING, STRUCTRES, OF FACILITIES WHICH IS
NECESSARY FO THE PLACEMENT, ASSEMBLY, OR INSTALLATION OF NEW SOURCE
FACILITIES OR EQUIPMENT;OR
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 165 OF 225
COSTLE DM ADMINISTRATOR
EPA
113664
REGULATIONS
(II) ENTERED A BINDING CONTRACTUAL OBLIGATION FOR THE PURCHASE OF
FACILITIES OR EQUIPMENT WHICH ARE INTENDED TO BE USED IN ITS OPERATION
WITHIN A REASONABLE TIME. OPTIONS TO PURCHAWE OR CONTRACTS WHICH CAN BE
TERMINATED OR MODIFIED WITHOUT SUBSTANTIAL LOSS, AND CONTRACTS FOR
FEASIBILITY, ENGINEERING, AND DESIGN STUDIES DO NOT CONSTITUTE A
CONTRACTUAL OBLIGATION UNDER THE PARAGRAPH.
(C) REQUIREMENT FOR AN ENVIRONMENTAL IMPACT STATEMENT. (1) THE
ISSUANCE OF AN NPDES PERMIT TO NEW SOURCE:
(I) BY EPA MAY BE A MAJOR FEDERAL ACTION SIGNIFICANTLY AFFECTING THE
QUALITY OF THE HUMAN ENVIRONMENT WITHIN THE MEANING OF THE NATIONAL
ENVIRONMENTAL POLICY ACT OF 1969 (NEPA), 33 U.S.C. 4321 ET SEQ. AND IS
SUBJECT TO THE ENVIRONMENTAL REVIEW PROVISIONS OF NEPA AS SET OUT IN 40
CFR PART 6, SUBPART F, EPA WILL DETERMINE WHETHER AN ENVIRONMENTAL
IMPACT STATEMENT (EIS) IS REQUIRED UNDER SECTION 122.53(H) (SPECIAL
PROVISIONS FOR APPLICATIONS FROM NEW SOURCES) AND 40 CFR PART 6, SUBPART
F;
(II) BY AN NPDES APPROVED STATE IS NOT A FEDERAL ACTION AND THEREFORE
DOES NOT REQUIRE EPA TO CONDUCT AN ENVIRONMENTAL REVIEW.
(2) AN EIS PREPARED UNDER THIS PARAGRAPH SHALL INCLUDE A
RECOMMENDATION EITHER TO ISSUE OR DENY THE PERMIT.
(I) IF THE RECOMMENDATION IS TO DENY THE PERMIT, THE FINAL EIS SHALL
CONTAIN THE REASONS FOR THE RECOMMENDATION AND LIST THOSE MEASURES, IF
ANY, WHICH THE APPLICANT COULD TAKE TO CAUSE THE RECOMMENDATION TO BE
CHANGED;
(II) IF THE RECOMMENDATION IS TO ISSUE THE PERMIT, THE FINAL EIS
SHALL RECOMMEND THE ACTIONS, IF ANY, WHICH THE PERMITTEE SHOULD TAKE TO
PREVENT OR MINIMIZE ANY ADVERSE ENVIRONMENTAL IMPACTS;
(3) THE REGIONAL ADMINISTRATOR SHALL ISSUE, CONDITION, OR DENY THE
NEW SOURCE NPDES PERMIT FOLLOWING A COMPLETE EVALUATION OF ANY
SIGNIFICANT BENEFICIAL AND ADVERSE ENVIRONMENTAL IMPACTS AND A REVIEW OF
THE RECOMMENDATIONS CONTAINED IN THE EIS OR FINDING OF NO SIGNIFICANT
IMPACT.
(4)(I) NO ON-SITE CONSTRUCTION OF A NEW SOURCE FOR WHICH AN EIS IS
REQUIRED SHALL COMMENCE BEFORE FINAL AGENCY ACTION IN ISSUING A FINAL
PERMIT INCORPORATING APPROPRIATE EIS-RELATED REQUIREMENTS, OR BEFORE
EXECUTION BY THE APPLICANT OF A LEGALLY BINDING WRITTEN AGREEMENT WHICH
REQUIRES COMPLIANCE WITH ALL SUCH REQUIREMENTS, UNLESS SUCH CONSTRUCTION
IS DETERMINED BY THE REGIONAL ADMINISTRATOR NOT TO CAUSE SIGNIFICANT OR
IRREVERSIBLE ADVERSE ENVIRONMENTAL IMPACT. THE PROVISIONS OF ANY
AGREEMENT ENTERED INTO UNDER THIS PARAGRAPH SHALL BE INCORPORATED AS
CONDITIONS OF THE NPDES PERMIT WHEN IT IS ISSUED.
(II) NO ON-SITE CONSTRUCTION OF A NEW SOURCE FOR WHICH AN EIS IS NOT
REQUIRED SHALL COMMENCE UNTIL 30 DAYS AFTER ISSUANCE OF A FINDING OF NO
SIGNIFICNAT IMPACT, UNLESS THE CONSTRUCTION IS DETERMINED BY THE
REGIONAL ADMINISTRATOR NOT TO CAUSE SIGNIFICANT ADVERSE ENVIRONMENTAL
IMPACTS.
(5) THE PERMIT APPLICANT MUST NOTIFY THE REGIONAL ADMINISTRATOR OF
ANY ON-SITE CONSTRUCTION WHICH BEGINS BEFORE THE TIMES SPECIFIED IN
PARAGRAPH (C)(4) OF THIS SECTION. IF ONSITE CONSTRUCTION BEGINS IN
VIOLATION OF THIS PARAGRAPH, THE REGIONAL ADMINISTRATOR SHALL ADVISE THE
OWNER OR OPERATOR THAT IT IS PROCEEDING WITH CONSTRUCTION AT ITS OWN
RISK, AND THAT SUCH CONSTRUCTION ACTIVITIES CONSTITUTE GROUNDS FOR
DENIAL OF A PERMIT. THE REGIONAL ADMINISTRATOR MAY SEEK A COURT ORDER
TO ENJOIN CONSTRUCTION IN VIOLATION OF THIS PARAGRAPH.
(D) EFFECT OF COMPLIANCE WITH NEW SOURCE PERFORMANCE STANDARDS. (THE
PROVISIONS OF THIS PARAGRAPH DO NOT APPLY TO EXISTING SOURCES WHICH
MODIFY THEIR POLLUTION CONTROL FACILITIES OR CONSTRUCT NEW POLLUTION
CONTROL FACILITIES AND ACHIEVE PERFORMANCE STANDARDS, BUT WHICH ARE
NEITHER NEW SOURCES OR NEW DISCHARGERS OR OTHERWISE DO NOT MEET THE
REQUIREMENTS OF THIS PARAGRAPH.)
(1) EXCEPT AS PROVIDED IN PARAGRAPH (D)(2) OF THIS SECTION, ANY NEW
DISCHARGER, THE CONSTRUCTION OF WHICH COMMENCED AFTER OCTOBER 18, 1972,
OR NEW SOURCE WHICH MEETS THE APPLICABLE PROMULGATED NEW SOURCE
PERFORMANCE STANDARDS BEFORE THE COMMENCEMENT OF DISCHARGE, MAY NOT BE
SUBJECT TO ANY MORE STRINGENT NEW SOURCE PERFORMANCE STANDARDS OR TO ANY
MORE STRINGENT TECHNOLOGY-BASED STANDARDS UNDER SECTION 301(B)(2) OF CWA
FOR THE SOONEST ENDING OF THE FOLLOWING PERIODS:
(I) TEN YEARS FROM THE DATE THAT CONSTRUCTION IS COMPLETED;
(II) TEN YEARS FROM THE DATE THE SOURCE BEGINS TO DISCHARGE PROCESS
OR OTHER NONCONSTRUCTION-RELATED WASTEWATER; OR
(III) THE PERIOD OF DEPRECIATION OR AMORTIZATION OF THE FACILITY FOR
THE PURPOSES OF SECTION 167 OR 169 (OR BOTH) OF THE INTERNAL REVENUE
CODE OF 1954.
(2) THE PROTECTION FROM MORE STRINGENT STANDARDS OF PERFORMANCE
AFFORDED BY PARAGRAPH (D)(1) OF THIS SECTION DOES NOT APPLY TO:
(I) ADDITIONAL OR MORE STRINGENT PERMIT CONDITIONS WHICH ARE NOT
TECHNOLOGY BASED; FOR EXAMPLE, CONDITIONS BASED ON WATER QUALITY
STANDARDS, OR TOXIC EFFLUENT STANDARDS OR PROHIBITIONS UNDER SECTION
307(A) OF CWA; OR
(II) ADDITIONAL PERMIT CONDITIONS IN ACCORDANCE WITH SECTION 125.3
CONTROLLING TOXIC POLLUTANTS OR HAZARDOUS SUBSTANCES WHICH ARE NOT
CONTROLLED BY NEW SOURCE PERFORMANCE STANDARDS. THIS INCLUDES PERMIT
CONDITIONS CONTROLLING POLLUTANTS OTHER THAN THOSE IDENTIFIED AS TOXIC
POLLUTANTS OR HAZARDOUS SUBSTANCES WHEN CONTROL OF THESE POLLUTANTS HAS
BEEN SPECIFICALLY IDENTIFIED AS THE METHOD TO CONTROL THE TOXIC
POLLUTANTS OR HAZARDOUS SUBSTANCES.
(3) WHEN AN NPDES PERMIT ISSUED TO A SOURCE WITH A "PROTECTION
PERIOD" UNDER PARAGRAPH (D)(1) OF THIS SECTION WILL EXPIRE ON OR AFTER
THE EXPIRATION OF THE PROTECTION PERIOD, THAT PERMIT SHALL REQUIRE THE
OWNER OR OPERATOR OF THE SOURCE TO COMPLY WITH THE REQUIREMENTS OF
SECTION 301 AND ANY OTHER THEN APPLICABLE REQUIREMENTS OF CWA
IMMEDIATELY UPON THE EXPIRATION OF THE PROTECTION PERIOD. NO ADDITIONAL
PERIOD FOR ACHIEVING COMPLIANCE WITH THESE REQUIREMENTS SHALL BE ALLOWED
EXCEPT WHEN NECESSARY TO ACHIEVE COMPLIANCE WITH REQUIREMENTS
PROMULGATED LESS THAN 3 YEARS BEFORE THE EXPIRATION OF THE PROTECTION
PERIOD.
(4) THE OWNER OR OPERATOR OF A NEW SOURCE, A NEW DISCHARGER WHICH
COMMENCED DISCHARGE AFTER AUGUST 13, 1979, OR A RECOMMENCING DISCHARGER
SHALL INSTALL AND HAVE IN OPERATING CONDITION, AND SHALL "START-UP" ALL
POLLUTION CONTROL EQUIPMENT REQUIRED TO MEET THE CONDITIONS OF ITS
PERMIT BEFORE BEGINNING TO DISCHARGE. WITHIN THE SHORTEST FEASIBLE TIME
(NOT TO EXCEED 90 DAYS), THE OWNER OR OPERATOR MUST MEET ALL PERMIT
CONDITIONS.
(5) AFTER THE EFFECTIVE DATE OF NEW SOURCE PERFORMANCE STANDARDS, IT
SHALL BE UNLAWFUL FOR ANY OWNER OR OPERATOR OF ANY NEW SOURCE TO OPERATE
THE SOURCE IN VIOLATION OF THOSE STANDARDS APPLICABLE TO THE SOURCE.
ANY PERMIT ISSUED AFTER JUNE 30, 1981 TO DISCHARGERS IN THE FOLLOWING
CATEGORIES SHALL INCLUDE EFFLUENT LIMITATIONS AND A COMPLIANCE SCHEDULE
TO MEET THE REQUIREMENTS OF SECTION 301(B)(2) (A), (C), (D), (E) AND (F)
OF CWA, WHETHER OR NOT APPLICABLE EFFLUENT LIMITATIONS GUIDELINES HAVE
BEEN PROMULGATED. SEE SECTIONS 122.62 AND 122.64.
ADHESIVES AND SEALANTS
ALUMINUM FORMING
AUTO AND OTHER LAUNDRIES
BATTERY MANUFACTURING
COAL MINING
COIL COATING
COPPER FORMING
ELECTRICAL AND ELECTRONIC COMPONENTS.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 166 OF 225
COSTLE DM ADMINISTRATOR
EPA
113665
REGULATIONS
ELECTROPLATING
EXPLOSIVES MANUFACTURING
FOUNDRIES
GUM AND WOOD CHEMICALS
INORGANIC CHEMICALS MANUFACTURING
IRON AND STEEL MANUFACTURING
LEATHER TANNING AND FINISHING
MERCHANICAL PRODUCTS MANUFACTURING
NONFERROUS METALS MANUFACTURING
ORE MINING
ORGANIC CHEMICALS MANUFACTURING
PAINT AND INK FORMULATION
PESTICIDES
PETROLEUM REFINING
PHARMACEUTICAL PREPARATIONS
PHOTOGRAPHIC EQUIPMENT AND SUPPLIES
PLASTICS PROCESSING
PLASTIC AND SYNTHETIC MATERIALS MANUFACTURING
PORCELAIN ENAMELING
PRINTING AND PUBLISHING
PULP AND PAPER MILLS
RUBBER PROCESSING
SOAP AND DETERGENT MANUFACTURING
STREAM ELECTRIC POWER PLANTS
TEXTILE MILLS
TIMBER PRODUCTS PROCESSING
AN ANIMAL FEEDING OPERATION IS A CONCENTRATED ANIMAL FEEDING
OPERATION FOR PURPOSES OF SECTION 122.54 IF EITHER OF THE FOLLOWING
CRITERIA ARE MET.
(A) MORE THAN THE NUMBERS OF ANIMALS SPECIFIED IN ANY OF THE
FOLLOWING CATEGORIES ARE CONFINED:
(1) 1,000 SLAUGHTER AND FEEDER CATTLE,
(2) 700 MATURE DAIRY CATTLE (WHETHER MILKED OR DRY COWS),
(3) 2,500 SWINE EACH WEIGHING OVER 25 KILOGRAMS (APPROXIMATELY 55
POUNDS),
(4) 500 HORSES,
(5) 10,000 SHEEP OR LAMBS,
(6) 55,000 TURKEYS,
(7) 30,000 LAYING HENS OR BROILERS (IF THE FACILITY HAS CONTINUOUS
OVERFLOW WATERING),
(8) 9,000 LAYING HENS OR BROILERS (IF THE FACILITY HAS A LIQUID
MANURE HANDLING SYSTEM),
(9) 1,500 DUCKS, OR
(10) 300 ANIMAL UNITS; AND EITHER ONE OF THE FOLLOWING CONDITIONS
ARE MET; POLLUTANTS ARE DISCHARGED INTO NAVIGABLE WATERS THROUGH A
MANMADE DITCH, FLUSHING SYSTEM OR OTHER SIMILAR MANMADE DEVICE; OR
POLLUTANTS ARE DISCHARGED DIRECTLY INTO WATERS OF THE UNITED STATES
WHICH ORIGINATE OUTSIDE OF AND PASS OVER, ACROSS, OR THROUGH THE
FACILITY OR OTHERWISE COME INTO DIRECT CONTACT WITH THE ANIMALS CONFINED
IN THE OPERATION.
PROVIDED, HOWEVER, THAT NO ANIMAL FEEDING OPERATION IS A CONCENTRATED
ANIMAL FEEDING OPERATION AS DEFINED ABOVE IF SUCH ANIMAL FEEDING
OPERATION DISCHARGES ONLY IN THE EVENT OF A 25-YEAR, 24-HOUR STORM
EVENT.
THE TERM "ANIMAL UNIT" MEANS A UNIT OF MEASUREMENT FOR ANY ANIMAL
FEEDING OPERATION CALCULATED BY ADDING THE FOLLOWING NUMBERS: THE
NUMBER OF SLAUGHTER AND FEEDER CATTLE MULTIPLIED BY 1.0, PLUS THE NUMBER
OF MATURE DAIRY CATTLE MULTIPLIED BY 1.4, PLUS THE NUMBER OF SWINE
WEIGHING OVER 25 KILOGRAMS (APPROXIMATELY 55 POUNDS) MULTIPLIED BY 0.4,
PLUS THE NUMBER OF SHEEP MULTIPLIED BY 0.1, PLUS THE NUMBER OF HORSES
MULTIPLIED BY 2.0.
THE TERM "MANMADE" MEANS CONSTRUCTED BY MAN AND USED FOR THE PURPOSE
OF TRANSPORTING WASTES.
A HATCHERY, FISH FARM, OR OTHER FACILITY IS A CONCENTRATED AQUATIC
ANIMAL PRODUCTION FACILITY FOR PURPOSES OF SECTION 122.55 IF IT
CONTAINS, GROWS, OR HOLDS AQUATIC ANIMALS IN EITHER OF THE FOLLOWING
CATEGORIES.
(A) COLD WATER FISH SPECIES OR OTHER COLD WATER AQUATIC ANIMALS IN
PONDS, RACEWAYS, OR OTHER SIMILAR STRUCTURES WHICH DISCHARGE AT LEAST 30
DAYS PER YEAR BUT DOES NOT INCLUDE:
(1) FACILITIES WHICH PRODUCE LESS THAN 9,000 HARVEST WEIGHT KILOGRAMS
(APPROXIMATELY 20,000 POUNDS) OF AQUATIC ANIMALS PER YEAR; AND
(2) FACILITIES WHICH FEED LESS THAN 2,272 KILOGRAMS (APPROXIMATELY
5,000 POUNDS) OF FOOD DURING THE CALENDAR MONTH OF MAXIMUM FEEDING.
(B) WARM WATER FISH SPECIES OR OTHER WARM WATER AQUATIC ANIMALS IN
PONDS, RACEWAYS, OR OTHER SIMILAR STRUCTURES WHICH DISCHARGE AT LEAST 30
DAYS PER YEAR, BUT DOES NOT INCLUDE:
(1) CLOSED PONDS WHICH DISCHARGE ONLY DURING PERIODS OF EXCESS
RUNOFF; OR
(2) FACILITIES WHICH PRODUCE LESS THAN 45,454 HARVEST WEIGHT
KILOGRMAS (APPROXIMATELY 100,000 POUNDS) OF AQUATIC ANIMALS PER YEAR.
"COLD WATER AQUATIC ANIMALS" INCLUDE, BUT ARE NOT LIMITED TO, THE
SALMONIDAE FAMILY OF FISH; E.G., TROUT AND SALMON.
"WARM WATER AQUATIC ANIMALS" INCLUDE, BUT ARE NOT LIMITED TO, THE
AMEIURIDE, CENTRARCHIDAE AND CYPRINIDAE FAMILIES OF FISH; E.G.,
RESPECTIVELY, CATFISH, SUNFISH AND MINNOWS.
TABLE I -- TASTING REQUIREMENTS FOR ORGANIC TOXIC POLLUTANTS BY
INDUSTRIAL CATEGORY FOR EXISTING DISCHARGERS
TABLE OMITTED
VOLATILES 1V ACROLEIN 2V ACRYLONITRILE 3V BENZENE 4V BIS
(CHLOMOETHYL) EITHER 5V BROMOFORM 6V CARBON TETRACHLORIDE 7V
CHLOROBENZENE 8V CHLORODIBROMOMETHANE 9V CHLOROETHANE 10V
2-CHLOROETHYLVINYL ETHER 11V CHLOROGORM 12V DICHLOROBROMOMETHANE 13V
DICHLORODIFUOROMETHANE 14V 1,1-DICHLOROETHANE 15V 1,2-DICHLOROETHANE 16V
1,1-DICHLOROETHYLENE 17V 1,2-DICHLOROPROPANE 18V 1,2-DICHLOROPROPYLENE
19V ETHYLBENZENE 20V METHYL BROMIDE 21V METHYL CHLORIDE 22V METHYLENE
CHLORIDE 23V 1,1,2,2-TETRACHLOROETHANE 24V TETRACHLOROETHYLENE 25V
TOLUENE 26V 1,2-TRANS-DICHLOROETHYLENE 27V 1,1,1-TRICHLOROETHANE 28V
1,1,2-TRICHLOROETHANE 29V TRICHLOROETHYLENE 30V TRICHLOROFLUOROMETHANE
31V VINYL CHLORIDE.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 167 OF 225
COSTLE DM ADMINISTRATOR
EPA
113666
REGULATIONS
ACID COMPOUNDS 1A 2-CHLOROPHENOL 2A 2,4-DICHLOROPHENOL 3A
2,4-DIMETHYLPHENOL 4A 4,6-DINITRO-O-CRESOL 5A 2,4-DINITROPHENOL 6A
2-NITROPHENOL 7A 4-NITROPHENOL 8A P-CHLORO-M-CRESOL 9A PENTACHLOROPHENOL
10A PHENOL 11A 2,4,6-TRICHLOROPHENOL
BASE/NEUTRAL 1B ACENAPHTHENE 2B ACENAPHTHYLENE 3B ANTHRACENE 4B
BENZIDINE 5B BENZO(A)ANTHRACENE 6B BENZO(A)PYRENE 7B
3,4-BENZOFLUORANTHENE 8B BENZO(GHI)PERYLENE 9B BENZO(K)FLUORANTHENE 10B
BIS(2-CHLOROETHOXY)METHANE 11B BIS(2-CHLOROETHYL)ETHER 12B
BIS(2-CHLOROISOPROPYL)ETHER 13B BIS(2-THYLHEXYL)PHTHALATE 14B
4-BROMOPHENYL PHENYL ETHER 15B BUTYLBENZYL PHTHALATE 16B
2-CHLORONAPHTHALENE 17B 4-CHLOROPHENYL PHENYL ETHER 18B CHRYSENE 19B
DIBENZO(A,H))ANTHRACENE 20B 1,2-DICHLOROBENZENE 21B 1,3-DICHLOROBENZENE
22B 1,4-DICHLOROBENZENE 23B 3,3-DICHLOROBENZIDINE 24B DIETHYL PHTHALATE
25B DIMETHYL PHTHALATE 26B DI-N-BUTYL PHTHALATE 27B 2,4-DINITROTOLUENE
28B 2,6-DINITROTOLUENE 29B DI-N-OCTYL PHTHALATE 30B
1,2-DIPHENYLHYDRAZINE (AS AZOBENZENE) 31B FLUORANTHENE 32B FLUORENE 33B
HEXACHLOROBENZENE 34B HEXACHLOROBUTADIENE 35B HEXACHLOROCYCLOPENTADINEE
36B HEXACHLOROETHANE 37B INDENO(1,2,3-CD)PYRENE 38B ISOPHORONE 39B
NAPHTHALENE 40B NITROBENZENE 41B N-NITROSODIMETHYLAMINE 42B
N-NITROSODI-N-PROPYLAMINE 43B N-NITROSODIPHENYLAMINE 44B PHENANTHRENE
45B PYRENE 46B 1,2,4-TRICHLOROBENZENE
PESTICIDES 1P ALDRIN 2P (SYMBOL OMITTED)-BHC 3P (SYMBOL OMITTED)-BHC
4P (SYMBOL OMITTED)-BHC 5P (SYMBOL OMITTED)-BHC 6P CHLORDANE 7P 4,4'-DDT
8P 4,4'-DDE 9P 4,4'-DDD 10P DIELDRIN 11P SYMBOL OMITTED)-ENDOSULFAN 12P
(SYMBOL OMITTED)-ENDOSULFAN 13P ENDOSULFAN SULFATE 14P ENDRIN 15P ENDRIN
ALDEHYDE 16P HEPTACHLOR 17P HEPTACHLOR EPOXIDE 18P PCB-1242 19P PCB-1254
20P PCB-1221 21P PCB-1232 22P PCB-1248 23P PCB-1260 24P PCB-1016 25P
TOXAPHENE
ANTIMONY, TOTAL ARSENIC, TOTAL BERYLLIUM, TOTAL CADMIUM, TOTAL CHROMIUM,
TOTAL COPPER, TOTAL LEAD, TOTAL MERCURY, TOTAL NICKEL, TOTAL SELENIUM,
TOTAL SILVER, TOTAL THALLIUM, TOTAL ZINC, TOTAL CYANIDE, TOTAL PHENOLS,
TOTAL
BROMIDE CHLORINE, TOTAL RESIDUAL COLOR FECAL COLIFORM FLUORIDE
NITRATE-NITRITE NITROGEN, TOTAL ORGANIC OIL AND GREASE PHOSPHORUS, TOTAL
RADIOACTIVITY SULFATE SULFIDE SULFITE SURFACTANTS ALUMINUM, TOTAL
BARIUM, TOTAL BORON, TOTAL COBALT, TOTAL IRON, TOTAL MAGNESIUM, TOTAL
MOLYBENUM, TOTAL MANGANESE, TOTAL TIN, TOTAL TITANIUM, TOTAL
TOXIC POLLUTNATS ASBESTOS
HAZARDOUS SUBSTANCES ACETALDEHYDE ALLYL ALCOHOL ALLYL CHLORIDE AMYL
ACETATE ANILINE BENZONITRILE BENZYL CHLORIDE BUTYL ACETATE BUTYLAMINE
CAPTAN CARBARYL CARBOFURAN CARBON DISULFIDE CHLORPYRIFOS COUMAPHOS
CRESOL CROTONALDEHYDE CYCLOHEXANE 2,4-D (2,4-DICHLOROPHENOXY ACETIC
ACID) DIAZINON DICAMBA DICHLOBENIL DICHLONE 2-BICHLOROPROPIONIC ACID
DICHLORVOS DIETHYL AMINE DIMETHYL AMINE DINTROBENZENE DIQUAT DISULFOTON
DIURON EPICHLOROHYDRIN ETHANOLAMINE THION ETHYLENE DIAMINE ETHYLENE
DI3ROMIDE FORMALDEHYDE FURFURAL GUTHION ISOPRENE ISOPROPANOLAMINE
KELTHANE KEPONE MALATHION MERCAPTODIMETHUR METHOXYCHLOR METHYL MERCAPTAN
METHYL METHACRYLATE METHYL PARATHION MEVINPHOS MEXACARBATE MONOETHYL
AMINE MONOMETHYL AMINE NALED NAPTHENIC ACID NITROTOLUENE PARATHION
PHENOLSULFANATE PHOSGENE PROPARGITE PROPYLENE OXIDE PYRETHRINS QUINOLINE
RESORCINOL STRONTIUM STRYCHNINE STYRENE 2,4,5-T(2,4,5-TRICHLOROPHENOXY
ACETIC ACID) TDE (TETRACHLORODIPHENYLETHANE) 2,4,5-TP
(2-(2,4,5-TRICHLOROPHENOXY) PROPANOIC ACID) TRICHLOROFON TRIETHYLAMINE
TRIMETHYLAMINE URANIUM VANADIUM VINYL ACETATE XYLENE XYLENOL ZIRCONIUM.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 168 OF 225
COSTLE DM ADMINISTRATOR
EPA
113667
REGULATIONS
123.1 PURPOSE AND SCOPE
123.2 DEFINITIONS.
123.3 ELEMENTS OF A PROGRAM SUBMISSION.
123.4 PROGRAM DESCRIPTION
123.5 ATTORNEY GENERAL'S STATEMENT.
123.6 MEMORANDUM OF AGREEMENT WITH REGIONAL ADMINISTRATOR.
123.7 REQUIREMENTS FOR PERMITTING.
123.8 REQUIREMENTS FOR COMPLIANCE EVALUATION PROGRAMS.
123.9 REQUIREMENTS FOR ENFORCEMENT AUTHORITY.
123.10 SHARING OF INFORMATION.
123.11 COORDINATION WITH OTHER PROGRAMS.
123.12 APPROVAL PROCESS.
123.13 PROCEDURES FOR REVISION OF STATE PROGRAMS.
123.14 CRITERIA FOR WITHDRAWAL OF STATE PROGRAMS.
123.15 PROCEDURES FOR WITHDRAWAL OF STATE PROGRAMS.
123.31 PURPOSE AND SCOPE.
123.32 CONSISTENCY.
123.33 REQUIREMENTS FOR IDENTIFICATION AND LISTING OF HAZARDOUS
WASTES.
123.34 REQUIREMENTS FOR GENERATORS OF HAZARDOUS WASTES.
123.35 REQUIREMENTS FOR TRANSPORTERS OF HAZARDOUS WASTES.
123.36 REQUIREMENTS FOR HAZARDOUS WASTE MANAGEMENT FACILITIES.
123.37 REQUIREMENTS WITH RESPECT TO PERMITS AND PERMIT APPLICATIONS.
123.38 EPA REVIEW OF STATE PERMITS.
123.39 APPROVAL PROCESS.
123.51 PURPOSE AND SCOPE
123.52 REQUIREMENT TO OBTAIN A PERMIT.
123.53 PROGRESS REPORTS.
123.54 APPROVAL PROCESS.
123.55 PROCEDURES FOR WITHDRAWAL OF STATE UIC PROGRAMS.
123.71 PURPOSE AND SCOPE.
123.72 CONTROL OF DISPOSAL OF POLLUTANTS INTO WELLS.
123.73 RECEIPT AND USE OF FEDERAL INFORMAION.
123.74 TRANSMISSION OF INFORMATION TO EPA.
123.75 EPA REVIEW OF AND OBJECTIONS TO STATE PERMITS.
123.76 PROHIBITION
123.77 APPROVAL PROCESS
123.91 PURPOSE AND SCOPE.
123.92 ACTIVITIES NOT REQUIRING PERMITS.
123.93 PROHIBITIONS.
123.94 PERMIT APPLICATION.
123.95 GENERAL PERMITS.
123.96 EMERGENCY PERMITS.
123.97 ADDITIONAL CONDITIONS APPLICABLE TO ALL 404 PERMITS.
123.98 ESTABLISHING 404 PERMIT CONDITIONS.
123.99 MEMORANDUM OF AGREEMENT WITH THE SECRETARY.
123.100 TRANSMISSION OF INFORMATION TO EPA AND OTHER FEDERAL
AGENCIES.
123.101 EPA REVIEW OF AND OBJECTIONS TO STATE PERMITS.
123.102 COORDINATION REQUIREMENTS.
123.103 ENFORCEMENT AUTHORITY.
123.104 APPROVAL PROCESS.
123.121 PURPOSE AND SCOPE.
123.122 SCHEDULE.
123.123 ELEMENTS OF A PROGRAM SUBMISSION.
123.124 PROGRAM DESCRIPTION.
123.125 ATTORNEY GENERAL'S STATEMENT.
123.126 MEMORANDUM OF AGREEMENT.
123.127 AUTHORIZATION PLAN.
123.128 PROGRAM REQUIREMENTS FOR INTERIM AUTHORIZATION FOR PHASE I.
123.129 ADDITIONAL PROGRAM REQUIREMENTS FOR INTERIM AUTHORIZATION FOR
PHASE II.
123.130 INTERSTATE MOVEMENT OF HAZARDOUS WASTE.
123.131 PROGRESS REPORTS.
123.132 SHARING OF INFORMATION.
123.133 COORDINATION WITH OTHER PROGRAMS.
123.134 EPA REVIEW OF STATE PERMITS.
123.135 APPROVAL PROCESS.
123.136 WITHDRAWAL OF STATE PROGRAMS.
123.137 REVERSION OF STATE PROGRAMS.
AUTHORITY: RESOURCE CONSERVATION AND RECOVERY ACT, 42 U.S.C. 6901 ET
SEQ; SAFE DRINKING WATER ACT, 42 U.S.C. 300(F) ET SEQ; CLEAN WATER
ACT, 33 U.S.C. 1251 ET SEQ.
(A) THIS PART SPECIFIES THE PROCEDURES EPA WILL FOLLOW IN APPROVING,
REVISING, AND WITHDRAWING STATE PROGRAMS UNDER THE FOLLOWING STATUTES
AND THE REQUIREMENTS STATE PROGRAMS MUST MEET TO BE APPROVED BY THE
ADMINISTRATOR UNDER:
(1) SECTION 3006(B) (HAZARDOUS WASTE-FINAL AUTHORIZATION) AND SECTION
3006(C) (HAZARDOUS WASTE-INTERIM AUTHORIZATION) OF RCRA;
(2) SECTION 1422 (UNDERGROUND INJECTION CONTROL -- UIC) OF SDWA;
(3) SECTIONS 318, 402, AND 405 (NATIONAL POLLUTANT DISCHARGE
ELIMINATION SYSTEM -- NPDES) OF CWA; AND
(4) SECTION 404 (DREDGED OR FILL MATERIAL) OF CWA.
(B) SUBPART A CONTAINS REQUIREMENTS APPLICABLE TO ALL PROGRAMS LISTED
IN PARAGRAPH (A) EXCEPT HAZARDOUS WASTE PROGRAMS OPERATING UNDER INTERIM
AUTHORIZATION. ALL REQUIREMENTS APPLICABLE TO HAZARDOUS WASTE PROGRAMS
OPERATING UNDER INTERIM AUTHORIZATION. ALL REQUIREMENTS APPLICABLE TO
HAZARDOUS WASTE PROGRAMS OPERATING UNDER INTERIM AUTHORIZATION ARE
CONTAINED IN SUBPART F. (REFERENCES IN THIS SUBPART TO "PROGRAMS UNDER
THIS PART" DO NOT REFER TO HAZARDOUS WASTE PROGRAMS OPERATING UNDER
INTERIM AUTHORIZATION.) SUBPART A INCLUDES THE ELEMENTS WHICH MUST BE
PART OF SUBMISSIONS TO EPA FOR PROGRAM APPROVAL, THE SUBSTANTIVE
PROVISIONS WHICH MUST BE PRESENT IN STATE PROGRAMS FOR THEM TO BE
APPROVED, AND THE PROCEDURES EPA WILL FOLLOW IN APPROVING, REVISING AND
WITHDRAWING STATE PROGRAMS. SUBPART B CONTAINS ADDITIONAL REQUIREMENTS
FOR STATES SEEKING FINAL AUTHORIZATION UNDER RCRA. SUBPART C CONTAINS
ADDITIONAL REQUIREMENTS FOR STATE UIC PROGRAMS. SUBPART D SPECIFIES
ADDITIONAL REQUIREMENTS FOR STATE NPDES PROGRAMS. SUBPART E SPECIFIES
ADDITIONAL REQUIREMENTS FOR STATE SECTION 404 PROGRAMS.
(C) STATE SUBMISSIONS FOR PROGRAM APPROVAL MUST BE MADE IN ACCORDANCE
WITH THE PROCEDURES SET OUT IN SUBPART A AND, IN THE CASE OF STATE 404
PROGRAMS WITH THE PROCEDURES SET OUT IN SUBPART E. (SUBMISSIONS FOR
INTERIM AUTHORIZATION SHALL BE MADE IN ACCORDANCE WITH SUBPART F.) THIS
INCLUDES DEVELOPING AND SUBMITTING TO EPA A PROGRAM DESCRIPTION (SECTION
123.4), AN ATTORNEY GENERAL'S STATEMENT (SECTION 123.5), A MEMORANDUM OF
AGREEMENT WITH THE REGIONAL ADMINISTRATOR (SECTION 123.6) AND WITH THE
SECRETARY IN THE CASE OF SECTION 404 PROGRAMS (SECTION 123.99).
(D) THE SUBSTANTIVE PROVISIONS WHICH MUST BE INCLUDED IN STATE
PROGRAMS FOR THEM TO BE APPROVED INCLUDE REQUIREMENTS FOR PERMITTING,
COMPLIANCE EVALUATION, ENFORCEMENT, PUBLIC PARTICIPATION, AND SHARING OF
INFORMATION. THE REQUIREMENTS ARE FOUND BOTH IN SUBPART A (SECTIONS
123.7 TO 123.11) AND IN THE PROGRAM SPECIFIC SUBPARTS. MANY OF THE
REQUIREMENTS ARE STATE PROGRAMS ARE MADE APPLICABLE TO STATES BY
CROSS-REFERENCING OTHER EPA REGULATIONS. IN PARTICULAR, MANY OF THE
PROVISIONS OF PARTS 122 AND 124 ARE MADE APPLICABLE TO STATES BY THE
FERERENCES CONTAINED IN SECTION 123.7.
(E) UPON SUBMISSION OF A COMPLETE PROGRAM, EPA WILL CONDUCT A PUBLIC
HEARING, IF INTEREST IS SHOWN, AND DETERMINE WHETER TO APPROVE OR
DISAPPROVE THE PROGRAM TAKING INTO CONSIDERATION THE REQUIREMENTS OF
THIS PART, THE APPROPRIATE ACT AND ANY COMMENTS RECEIVED.
(F) THE ADMINISTRATOR SHALL APPROVE STATE PROGRAMS WHICH CONFORM TO
THE APPLICABLE REQUIREMENTS OF THIS PART.
(G) UPON APPROVAL OF A STATE PROGRAM, THE ADMINISTRATOR (OR THE
SECRETARY IN THE CASE OF SECTION 404 PROGRAMS) SHALL SUSPEND THE
ISSUANCE OF FEDERAL PERMITS FOR THOSE ACTIVITIES SUBJECT TO THE APPROVED
STATE PROGRAM.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 169 OF 225
COSTLE DM ADMINISTRATOR
EPA
113668
REGULATIONS
(H) ANY STATE PROGRAM APPROVED BY THE ADMINISTRATOR SHALL AT ALL
TIMES BE CONDUCTED IN ACCORDANCE WITH THE REQUIREMENTS OF THIS PART.
(I) STATES ARE ENCOURAGED TO CONSOLIDATE THEIR PERMITTING ACTIVITIES.
WHILE APPROVAL OF STATE PROGRAMS UNDER THIS PART WILL FACILITATE SUCH
CONSOLIDATION, THESE REGULATIONS DO NOT REQUIRE CONSOLIDATION. EACH OF
THE FOUR PROGRAMS UNDER THIS PART MAY BE APPLIED FOR AND APPROVED
SEPARATELY.
(J) PARTIAL STATE PROGRAMS ARE NOT ALLOWED UNDER NPDES, 404, OR RCRA
(FOR PROGRAMS OPERATING UNDER FINAL AUTHORIZATION). HOWEVER, IN MANY
CASES STATES WILL LACK AUTHORITY TO REGULATE ACTIVITIES ON INDIAN LANDS.
THIS LACK OF AUTHORITY DOES NOT IMPAIR A STATE'S ABILITY TO OBTAIN FULL
PROGRAM APPROVAL IN ACCORDANCE WITH THIS PART, I.E., INABILITY OF A
STATE TO REGULATE ACTIVITIES ON INDIAN LANDS DOES NOT CONSTITUTE A
PARTIAL PROGRAM. SIMILARLY, A STATE CAN ASSUME PRIMARY ENFORCEMENT
RESPONSIBILITY FOR THE UIC PROGRAM, NOTWITHSTANDING SECTION 123.51(E),
WHEN THE STATE PROGRAM IS UNABLE TO REGULATE ACTIVITIES ON INDIAN LANDS
WITHIN THE STATE. EPA OR IN THE CASE OF SECTION 404 PROGRAMS THE
SECRETARY, WILL ADMINISTER THE PROGRAM ON INDIAN LANDS IF THE STATE DOES
NOT SEEK THIS AUTHORITY.
(NOTE. -- STATES ARE ADVISED TO CONTACT THE UNITED STATES DEPARTMENT
OF THE INTERIOR, BUREAU OF INDIAN AFFAIRS, CONCERNING AUTHORITY OVER
INDIAN LANDS.)
(K) EXCEPT AS PROVIDED IN SECTION 123.32, NOTHING IN THIS PART
PRECLUDES A STATE FROM:
(1) ADOPTING OR ENFORCING REQUIREMENTS WHICH ARE MORE STRINGENT OR
MORE EXTENSIVE THAN THOSE REQUIRED UNDER THIS PART;
(2) OPERATING A PROGRAM WITH A GREATER SCOPE OF COVERAGE THAN THAT
REQUIRED UNDER THIS PART. WHERE AN APPROVED STATE PROGRAM HAS A GREATER
SCOPE OF COVERAGE THAN REQUIRED BY FEDERAL LAW THE ADDITIONAL COVERAGE
IS NOT PART OF THE FEDERALLY APPROVED PROGRAM.
(NOTE. -- FOR EXAMPLE, WHEN A STATE REQUIRES PERMITS FOR DISCHARGES
INTO PUBLICLY OWNED TREATMENT WORKS, THESE PERMITS ARE NOT NPDES
PERMITS. ALSO, STATE ASSUMPTION OF THE SECTION 404 PROGRAM IS LIMITED
TO CERTAIN WATERS, AS PROVIDED IN SECTION 123.91(C). THE FEDERAL
PROGRAM OPERATED BY THE CORPS OF ENGINEERS CONTINUES TO APPLY TO THE
REMAINING WASTERS IN THE STATE EVEN AFTER PROGRAM APPROVAL. HOWEVER,
THIS DOES NOT RESTRICT STATES FROM REGULATING DISCHARGES OF DREDGED OR
FILL MATERIALS INTO THOSE WATERS OVER WHICH THE SECRETARY RETAINS
SECTION 404 JURISDICTION.)
THE DEFINITIONS IN PART 122 APPLY TO ALL SUBPARTS OF THIS PART,
INCLUDING SUBPART F.
(A) ANY STATE THAT SEEKS TO ADMINISTER A PROGRAM UNDER THIS PART
SHALL SUBMIT TO THE ADMINISTRATOR AT LEAST THREE COPIES OF A PROGRAM
SUBMISSION. THE SUBMILLION SHALL CONTAIN THE FOLLOWING:
(1) A LETTER FROM THE GOVERNOR OF THE STATE REQUEATING PROGRAM
APPROVAL;
(2) A COMPLETE PROGRAM DESCRIPTION, AS REQUIRED BY SECTION 123.4,
DESCRIBING HOW THE STATE INTENDS TO CARRY OUT ITS RESPONSIBILITIES UNDER
THIS PART;
(3) AN ATTORNEY GENERAL;S STATEMENT AS REQUIRED BY SECTION 123.5;
(4) A MEMORANDUM OF AGREEMENT WITH THE REGIONAL ADMINISTRATOR AS
REQUIRED BY SECTION 123.6, AND, IN THE CASE OF STATE SECTION 404
PROGRAMS, A MEMORANDUM OF AGREEMENT WITH THE SECRETARY AS REQUIRED BY
SECTION 123.99;
(5) COPIES OF ALL APPLICABE STATE STATUTES AND REGULATIONS, INCLUDING
THOSE GOVERNING STATE ADMINISTRATIVE PROCEDURES;
(6) THE SHOWING REQUIRED BY SECTION 123.39(C) (RCRA PROGRAMS ONLY)
AND SECTION 123.54 (B) (UIC PROGRAMS ONLY ) OF THE STATE'S PUBLIC
PARTICIPATION ACTIVITIES PRIOR TO PROGRAM SUBMISSION.
(B) WITHIN 30 DAYS OF RECIEPT OY EPA OF A STATE PROGRAM SUBMISSION,
EPA WILL NOTIFY THE STATE WHETHER ITS SUBMISSION IS COMPLETE. IF EPA
FINDS THAT A STATE'S SUBMISSION IS COMPLETE THE STATUTORY REVIEW PERIOD
(I.E., THE PERIOD OF TIME ALLOTTED FOR FORMAL EPA REVIEW OF A PROPOSED
STATE PROGRAM UNDER THE APPROPRIATE ACT) SHALL BE DEEMED TO HAVE BEGUN
ON THE DATE OF RECEIPT OF THE STATE'S SUBMISSION. IF EPA FINDS THAT A
STATE'S SUBMISSION IS INCOMPLETE, THE STATUTORY REVIEW PERIOD SHALL NOT
BEGIN UNTIL ALL THE NECESSARY INFORMATION IS RECEIVED BY EPA.
(C) IF THE STATE'S SUBMISSION IS MATERIALLY CHANGED DURING THE
STATUTORY REVIEW PERIOD, THE STATUTORY REVIEW PERIOD SHALL BEGIN AGAIN
UPON RECEIPT OF THE REVISED SUBMISSION.
(D) THE STATE AND EPA MAY EXTEND THE STATUTORY REVIEW PERIOD BY
AGREEMENT.
ANY STATE THAT SEEKS TO ADMINISTER A PROGRAM UNDER THIS PART SHALL
SUBMIT A DESCRIPTION OF THE PROGRAM IT PROPOSES TO ADMINISTER IN KIEU OF
THE FEDERAL PROGRAM UNDER STATE LAW OR UNDER AN INTERSTATE COMPACT. THE
PROGRAM DESCRIPTION SHALL INCLUDE:
(A) A DESCRIPTION IN NARRATIVE FORM OF THE SCOPE, STRUCTURE, COVERAGE
AND PROCESSES OF THE STATE PROGRAM.
(B) A DESCRIPTION (INCLUDING ORGANIZATION CHARTS) OF THE ORGANIZATIO
AND STRUCTURE OF THE STATE AGENCY OR AGENCIES WHICH WILL HAVE
RESPONSIBILITY FOR ADMINISTERING THE PROGRAM, INCLUDING THE INFORMATION
LISTED BELOW. IF MORE THAN ONE AGENCY IS RESPONSIBLE FOR ADMINISTRATION
OF A PROGRAM, EACH AGENCY MUST HAVE STATEWIDE JURISDICTION OVER A CLASS
OF ACTIVITIES. THE RESPONSIBILITIES OF EACH AGENCY MUST BE DELINEATED,
THEIR PROCEDURES FOR COORDINATION SET FORTH, AND AN AGENCY MAY BE
DESIGNATED AS A "LEAD AGENCY" TO FACILITATE COMMUNICATIONS BETWEEN EPA
AND THE STATE AGENCIES HAVING PROGRAM RESPONSIBILITY. IN THE CASE OF
STATE RCRA PROGRAMS, SUCH A DESIGNATION IS MANDATORY (SEE PARAGRAPH
(F)(4) OF THIS SECTTON). WHEN THE STATE PROPOSES TO ADMINISTER A
PROGRAM OF GREATER SCOPE OF COVERAGE THAN IS REQUIRED BY FEDERAL LAW,
THE INFORMATION PROVIDED UNDER THIS PARAGRAPH SHALL INDICATE THE
RESOURCES DEDICATED TO ADMINISTERING THE FEDERALLY REQUIRED PORTION OF
THE PROGRAM.
(1) A DESCRIPTION OF THE STATE AGENCY STAFF HO WILL CARRY OUT THE
STATE PROGRAM, INCLUDING THE NUMBER, OCCUPATIONS, AND GENERAL DUTIES OF
THE EMPLOYEES. THE STATE NEED NOT SUBMIT COMPLETE JOB DESCRIPTIONS FOR
EVERY EMPLOYEE CARRYING OUT THE STATE PROGRAM.
(2) AN ITEMIZATION OF THE ESTIMATED COSTS OF ESTABLISHING AND
ADMINISTERING THE PROGRAM FOR THE FIRST TWO YEARS AFTER APPROVAL,
INCLUDING COST OF THE PERSONNEL LISTED IN PARAGRAPH (B)(1) OF THIS
SECTION, COST OF ADMINISTRATIVE SUPPORT, AND COST OF TECHNICAL SUPPORT.
(3) AND ITEMIZATION OF THE SOURCES AND AMOUNTS OF FUNDING, INCLUDING
AN ESTIMATE OF FEDERAL GRANT MONEY, AVAILABLE TO THE STATE DIRECTOR FOR
THE FIRST TWO YEARS AFTER APPROVAL TO MEET THE COSTS LISTED IN PARAGRAPH
(B)(2) OF THIS SECTION., IDENTIFYING ANY RESTRICTIONS OR LIMITATIONS
UPON THIS FUNDING.
(C) A DESCRIPTION OF APPLICABLE STATE PROCEDURES, INCLUDING PERMITTI
PROCEDURES AND ANY STATE ADMINISTARTIVE OR JUDICIAL REVIEW PROCEDURES.
(D) COPIES OF THE PERMIT FORM(S), APPLICATION FORM(S), REPORTING
FORM(S), AND MANIFEST FORMAT THE STATE INTENDS TO EMPLOY IN ITS PROGRAM.
FORMS USED BY STATES NEED NOT BE IDENTICAL TO THE FORMS USED BY EPA BUT
SHOULD REQUIRE THE SAME BASIC INFORMATION, EXCEPT THAT STATE NPDES
PROGRAMS ARE REQUIRED TO USE STANDARD DISCHARGE MONITORING REPORTS
(DMR). THE STATE NEED NOT PROVIDE COPIES OF UNIFORM NATIONAL FORMS IT
INTENDS TO USE BUT SHOULD NOTE ITS INTENTION TO USE SUCH FORMS. STATE
SECTION 404 APPLICATION FORMS MUST INCLUDE THE INFORMATION REQUIRED BY
SECTION 123.94 AND STATE SECTION 404 PERMIT FORMS MUST INCLUDE THE
INFORMATION AND CONDITIONS REQUIRED BY SECTION 123.97.
(NOTE. -- STATES ARE ENCOURAGED TO USE UNIFORM NATIONAL FORMS
ESTABLISHED BY THE ADMINISTRATOR.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 170 OF 225
COSTLE DM ADMINISTRATOR
EPA
113669
REGULATIONS
IF UNIFORM NATIONAL FORMS ARE USED, THEY MAY BE MODIFIED TO INCLUDE
THE STATE AGENCY'S NAME, ADDRESS, LOGO, AND OTHER SIMILAR INFORMATION,
AS APPROPRIATE, IN PLACE OF EPA'S.)
(E) A COMPLETE DESCRIPTION OF THE STATE'S COMPLIANCE TRACKING AND
ENFORCEMENT PROGRAM.
(F) STATE RCRA PROGRAMS ONLY. IN THE CASE OF STATE RCRA PROGRAMS,
THE PROGRAM DESCRIPTION SHALL ALSO INCLUDE:
(I) A DESCRIPTION OF THE STATE MANIFEST TRACKING SYSTEM, AND OF THE
PROCEDURES THE STATE WILL USE TO COORDINATE INFORMATION WITH OTHER
APPROVED STATE PROGRAMS AND THE FEDERAL PROGRAM REGARDING INTERSTATE AND
INTERNATIONAL SHIPMENTS.
(2) AN ESTIMATE OF THE NUMBER OF THE FOLLOWING:
(I) GENERATORS;
(II) TRANSPORTERS; AND
(III) ON- AND OFF-SITE STORAGE, TREATMENT AND DISPOSAL FACILITIES,
AND A BRIEF DESCRIPTION OF THE TYPES OF FACILITIES AND AN INDICATION OF
THE PERMIT STATUS OF THESE FACILITIES.
(3) IF AVAILABLE, AN ESTIMATE OF THE ANNUAL QUANTITIES OF HAZARDOUS
WASTES:
(I) GENERATED WITHIN THE STATE;
(II) TRANSPORTERS; AND STATE; AND
(III) STORED, TREATED, OR DISPOSAL OF WITHIN THE STATE;
(A) ON-SITE; AND
(B) OFF-SITE.
(4) WHEN MORE THAN ONE AGENCY WITHIN A STATE HAS RESPONSIBILITY FOR
ADMINISTERING THE STATE PROGRAM, AN IDENTIFICATION OF A "LEAD AGENCY"
AND A DESCRIPTION OF HOW THE STATE AGENCIES WILL COORDINATE THEIR
ACTIVITIES.
(G) STATE UIC PROGRAMS ONLY. IN THE CASE OF A SUBMISSION FOR
APPROVAL OF A STATE UIC PROGRAM THE STATE'S PROGRAM DESCRIPTION SHALL
ALSO INCLUDE:
(1) A SCHEDULE FOR ISSUING PERMITS WITHIN FIVE YEARS AFTER PROGRAM
APPROVAL TO ALL INJECTION WELLS WITHIN THE STATE WHICH ARE REQUIRED TO
HAVE PERMITS UNDER THIS PART AND PART 122;
(2) THE PRIORITIES (ACCORDING TO CRITERIA SET FORTH IN 40 CFR SECTION
146.09) FOR ISSUING PERMITS, INCLUDING THE NUMBEF OF PERMITS IN EACH
CLASS OF INJECTION WELL WHICH WILL BE ISSUED EACH YEAR DURING THE FIRST
FIVE YEARS OF PROGRAM OPERATION;
(3) A DESCRIPTION OF HOW THE DIRECTOR WILL IMPLEMENT THE MECHANICAL
INTEGRITY TESTING REQUIREMENTS OF 40 CFR SECTION 146.08, INCLUDING THE
FREQUENCY OF TESTING THAT WILL BE REQUIRED AND THE NUMBER OF TESTS THAT
WILL BE REVIEWED BY THE DIRECTOR EACH YEAR;
(4) A DESCRIPTION OF THE PROCEDURE WHEREBY THE DIRECTOR ILL NOTIFY
OWNERS AND OPERATORS OF INJECTION WELLS OF THE REQUIREMENT THAT THEY
APPLY FOR AND OBTAIN A PERMIT. THE NOTIFICATION REQUIRED BY THIS
PARAGRAPH SHALL REQUIRE APPLICATIONS TO BE FILED AS SOON AS POSSIBLE,
BUT NOT LATER THAN FOUR YEARS AFTER PROGRAM APPROVAL FOR ALL INJECTION
WELLS REQUIRING A PERMIT;
(5) A DESCRIPTION OF ANY RULE UNDER WHICH THE DIRECTOR PROPOSES TO
AUTHORIZE INJECTIONS, INCLUDING THE TEXT OF THE RULE;
(6) FOR ANY EXISTING ENHANCED RECOVERY AND HYDROCARBON STORAGE
WELLS WHICH THE DIRECTOR PROPOSES TO AUTHORIZE BY RULE, A
DESCRIPTION OF THE PROCEDURES FOR REVIEWING THE WELLS FOR COMPLIANCE
WITH APPLICABLE MONITORING, REPORTING, CONSTRUCTION, AND FINANCIAL.
RESPONSIBILITY REQUIREMENTS OF SECTIONS 122.41 AND 122.42, AND
40 CFR PART 146;
(7) A DESCRIPTION OF AND SCHEDULE FOR THE STATE'S PFOGRAM TO
ESTABLISH AND MAINTAIN A CURRENT INVENTORY OF INJECTION WELLS WHICH MUST
BE PERMITTED UNDER STATE LAW;
(8) WHERE THE DIRECTOR HAS DESIGNATED UNDERGROUND SOURCES OF DRINKING
WATER IN ACCORDANCE WITH SECTION12.35(A), A DESCRIPTION AND
IDENTIFICATION OF ALL SUCH DESIGNATED SOURCES IN THE STATE;
(9) A DESCRIPTION OF AQUIFERS, OR PARTS THEREOF, WHICH THE DIRECTOR
HAS IDENTIFIED UNDER SECTION 122.35(B) AS EXEMPTED AQUIFERS, AND
A SUMMARY OF SUPPORTING DATA;
(10) A DESCRIPTION OF AND SCHEDULE FOR THE STATE'S PROGRAM TO BAN
CLASS IV WELLS PROHIBITED UNDER SECTION 122.36; AND
(11) A DESCRIPTION OF AND SCHEDULE FOR THE STATE'S PROGRAM ESTABLISH
AN INVENTORY OF CLASS V WELLS AND TO ASSESS THE NEED FOR A PROGRAM TO
REGULATE CLASS V WELLS.
(H) STATE 404 PROGRAMS ONLY. IN THE CASE OF A SUBMISSION FOR
APPROVAL OF A SECTION 404 PROGRAM THE STATE'S PROGRAM DESCRIPTION SHALL
ALSO INCLUDE:
(1) A DESCRIPTION OF STATE REGULATED WATERS.
(NOTE. -- STATES SHOULD OBTAIN FROM THE SECRETARY AN IDENTIFICATION
OF THOSE WATERS OF THE U.S. WITHIN THE STATE OVER WHICH THE CORPS OF
ENGINEERS RETAINS AUTHORITY UNDER SECTION 404(G) OF CWA.)
(2) A CATEGORIZATION, BY TYPE AND QUANTITY, OF DESCHARGES WITHIN THE
STATE, AND AN ESTIMATE OF THE NUMBER OF DISCHARGES WITHIN EACH CATEGORY
FOR WHICH THE DISCHARGER MUST FILE FOR A PERMIT.
(3) AN ESTIMATE OF THE NUMBER AND PRECENT OF ACTIVITIES WITHIN EACH
CATEGORY FOR WHICH THE STATE HAS ALREADY ISSUED A STATE PERMIT
REGULATING THE DISCHARGE.
(4) IN ACCORDANCE WITH SECTION 123.92(A)(6), A DESCRIPTION OF THE
SPECIFIC BEST MANAGEMENT PRACTICES REQUIREMENTS PROPOSED TO BE USED TO
SATISFY THE EXEMPTION PROVISIONS OF SECTION 404(F)(1)(E) OF CWA FOR
CONSTRUCTION OR MAINTENANCE OF FARM ROADS, FOREST ROADS, OR TEMPORARY
ROADS FOR MOVING MINING EQUIPMENT.
(5) A DESCRIPTION OF HOW THE STATE SECTION 404 AGENCY(IES) WILL
INTERACT WITH OTHER STATE AND LOCAL AGENCIES.
(6) A DESCRIPTION OF HOW THE STATE WILL COORDINATE IS ENFORCEMENT
STRATEGY WITH THAT OF THE CORPS OF ENGINEERS AND EPA.
(7) WHERE MORE THAN ONE AGENCY WITHIN A STATE HAS RESPONSIBILITY FOR
ADMINISTERING THE STATE PROGRAM:
(I) A MEMORANDUM OF UNDERSTANDING AMONG ALL THE RESPONSIBLE STATE
AGENCIES WHICH ESTABLISHES:
(A) PROCEDURES FOR OBTAINING AND EXCHANGING INFORMATION NECESSARY FOR
EACH AGENCY TO DETERMINE AND ASSESS THE CUMULATIVE IMPACTS OF ALL
ACTIVITIES AUTHORIZED UNDER THE STATE PROGRAM;
(B) COMMON REPORTING REQUIREMENTS; AND
(C) ANY OTHER APPROPRIATE PROCEDURES NOT INCONSISTENT WITH SECTION
404 OF CWA OR THESE REGULATIONS;
(II) A DESCRIPTION OF PROCEDURES FOR COORDINATING COMPLIANCE
MONITORING AND ENFORCEMENT, DISTRIBUTING AMONG THE RESPONSIBLE AGENCIES
INFORMATION RECEIVED FROM APPLICANTS AND PERMITTEES, AND ISSUING REPORTS
REQUIRED BY SECTION 404 OF CWA OR THESE REGULATIONS.
(8) WHERE SEVERAL STATE 404 PERMITS ARE REQUIRED FOR A SINGLE
PROJECT, A DESCRIPTION OF PROCEDURES FOR:
(I) ENSURING THAT ALL THE NECESSARY STATE 404 PERMITS ARE ISSUED
BEFORE ANY OF THE PERMITS GO INTO EFFECT; AND
(II) CONCURRENT PROCESSING AND, WHERE APPROPRIATE, JOINT PROCESSING
OF ALL OF THE NECESSARY STATE 404 PERMITS.
(A) ANY STATE THAT SEEKS TO ADMINISTER A PROGRAM UNDER THIS PART
SHALL SUBMIT A STATEMENT FROM THE STATE ATTORNEY GENERAL (OR THE
ATTORNEY FOR THOSE STATE OR INTERSTATE AGENCIES WHICH HAVE INDEPENDENT
LEGAL COUNSEL) THAT THE LAWS OF THE STATE, OR AN INTERSTATE COMPACT,
PROVIDE ADEQUATE AUTHORITY TO CARRY OUT THE PROGRAM DESCRIBED UNDER
SECTION 123.4 AND TO MEET THE REQUIREMENTS OF THIS PART. THIS STATEMENT
WILL INCLUDE CITATIONS TO THE SPECIFIC STATUTES, ADMINISTRATIVE
REGULATIONS, AND, WHERE APPROPRIATE, JUDICIAL DECISIONS WHICH
DEMONSTRATE ADEQUATE AUTHORITY. STATE STATUTES AND REGULATIONS CITED
SHALL BE IN THE FORM OF LAWFULLY ADOPTED STATE STATUTES AND REGULATIONS
AT THE TIME THE STATEMENT IS SIGNED AND SHALL BE FULLY EFFECTIVE BY THE
TIME THE PROGRAM IS APPROVED. TO QUALIFY AS "INDEPENDENT LEGAL COUNSEL"
THE ATTORNEY SIGNING THE STATEMENT REQUIRED BY THIS SECTION MUST HAVE
FULL AUTHORITY TO INDEPENDENTLY REPRESENT THE STATE AGENCY IN COURT ON
ALL MATTERS PERTAINING TO THE STATE PROGRAM
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 171 OF 225
COSTLE DM ADMINISTRATOR
EPA
113670
REGULATIONS
(NOTE. -- EPA WILL SUPPLY STATES WITH AN ATTORNEY GENERAL;S STATEMENT
FORMAT ON REQUEST.)
(B) WHEN A STATE SEEKS AUTHORITY OVER ACTIVITIES ON INDIAN LANDS, THE
STATEMENT SHALL CONTAIN AN APPROPRIATE ANALYSIS OF THE STATE'S
AUTHORITY.
(C) STATE NPDES PROGRAMS ONLY. IN THE CASE OF STATE NPDES PROGRAMS,
THE ATTORNEY GENERAL'S STATEMENT SHALL CERTIFY THAT THE STATE HAS
ADEQUATE LEGAL AUGHORITY TO ISSUE AND ENFORCE GENERAL PERMITS IF THE
STATE SEEKS TO IMPLEMENT THE GENERAL PERMIT PROGRAM UNDER SECTION
122.59.
(D) STATE SECTION 404 PROGRAMS ONLY.
(1) IN THE CASE OF STATE SECTION 404 PROGRAMS THE STATE ATTORNEY
CENERAL'S STATEMENT SHALL CONTAIN AN ANALYSIS OF STATE LAW REGARDING THE
PROHIBITION OF TAKING PRIVATE PROPERY WITHOUT JUST COMPENSATION,
INCLUDING ANY APPLICABLE JUDICIAL INTERPRETATIONS, AND AN ASSESSMENT
OFTHE EFFECT SUCH LAW WILL HAVE ON THE SUCCESSFUL IMPLEMENTATION OF THE
STATE'S REGULATION OF THE DISCHARGE OF DREDGED OR FILL MATERIAL.
(2) IN THE CASE OF STATE SECTION 404 PROGRAMS, WHERE MORE THAN ONE
AGENCY HAS RESPONSIBILITY FOR ADMINISTERING THE STATE PROGRAM, THE
ATTORNEY GENERAL'S STATEMENT SHALL INCLUDE CERTIFICATION THAT EACH
AGENCY HAS FULL AUTHORITY TO ADMINISTER THE PROGRAM WITHIN ITS CATEGORY
OF JURISDICTION AND THAT THE STATE AS A WHOLE HAS FULL AUTHORITY TO
ADMINISTER A COMPLETE STATE SECTION 404 PROGRAM.
(A) ANY STATE THAT SEEKS TO ADMINISTER A PROGRAM UNDER THIS PART
SHALL SUBMIT A MEMORANDUM OF AGREEMENT. THE MEMORANDUM OF AGREEMENT
SHALL BE EXECUTED BY THE STATE DIRECTOR AND THE REGIONAL ADMINISTRATOR
AND SHALL BECOME EFFECTIVE WHEN APPROVED BY THE ADMINISTRATOR. IN
ADDITION TO MEETING THE REQUIREMENTS OF PARAGRAPH (B) OF THIS SECTION,
THE MEMORANDUM OF AGREEMENT MAY INCLUDE OTHER TERMS, CONDITIONS, OR
AGREEMENTS CONSISTENT WITH THIS PART AND RELEVANT TO THE ADMINISTRATION
AND ENFORCEMENT OF THE STATE'S REGULATORY PROGRAM. THE ADMINISTRATOR
SHALL NOT APPROVE ANY MEMORANDUM OF AGREEMENT WHICH CONTAINS PROVISIONS
WHICH RESTRICT EPA'S STATUTORY OVERSIGHT RESPONSIBILITY.
(B) THE MEMORANDUM OF AGREEMENT SHALL INCLUDE THE FOLLOWING:
(1) PROVISIONS FOR THE PROMPT TRANSFER FROM EPA TO THE STATE OF
PENDING PERMIT APPLICATIONS AND ANY OTHER INFORMATION RELEVANT TO
PROGRAM OPERATION AND ALREADY IN THE POSSESSION OF THE STATE DIRECTOR
(E.G., SUPPORT FILES FOR PERMIT ISSUANCE, COMPLIANCE REPORTS, ETC.).
WHEN EXISTING PERMITS ARE TRANSFERRED FROM EPA TO THE STATE FOR
ADMINISTRATION, THE MEMORANDUM OF AGREEMENT SHALL CONTAIN PROVISIONS
SPECIFYING A PROCEDURE FOR TRANSFERRING THE ADMINISTRATION OF THESE
PERMITS. IF A STATE LACKS THE AUTHORITY TO DIRECTLY ADMINISTER PERMITS
ISSUED BY THE FEDERAL GOVERNMENT, A PROCEDURE MAY BE ESTABLISHED TO
TRANSFER RESPONSIBILITY FOR THESE PERMITS.
(NOTE. -- FOR EXAMPLE, EPA AND THE STATE AND THE PERMITTEE COULD
AGREE THAT THE STATE WOULD ISSUE A PERMIT(S) IDENTICAL TO THE
OUTSTANDING FEDERAL PERMIT WHICH WOULD SIMULTANEOUSLY BE TERMINATED.)
(2) PROVISIONS SPECIFYING CLASSES AND CATEGORIES OF PERMIT
APPLICATIONS, DRAFT PERMITS, AND PROPOSED PERMITS THAT THE STATE WILL
SEND TO THE REGIONAL ADMINISTRATOR FOR REVIEW, COMMENT AND, WHERE
APPLICABLE, OBJECTION.
(NOTE. -- THE NATURE AND BASIS OF EPA REVIEW OF STATE PERMITS AND
PERMIT APPLICATIONS DIFFERS AMONG THE PROGRAMS GOVERNED BY THIS PART.
SEE SECTIONS 123.38 (RCRA), 123.75 (NPDES) AND 123.101 (404).)
(3) PROVISIONS SPECIFYING THE FREQUENCY AND CONTENT OF REPORTS,
DOCUMENTS AND OTHER INFORMATION WHICH THE STATE IS REQUIRED TO SUBMIT TO
EPA. THE STATE SHALL ALLOW EPA TO ROUTINELY REVIEW STATE RECORDS,
REPORTS, AND FILES RELEVANT TO THE ADMINISTRATION AND ENFORCEMENT OF THE
APPROVED PROGRAM. STATE REPORTS MAY BE COMBINED WITH GRANT REPORTS
WHERE APPROPRIATE. THESE PROCEDURES SHALL IMPLEMENT THE REQUIREMENTS OF
SECTION 123.74 (NPDES PROGRAMS ONLY) AND SECTION 123.100 (404 PROGRAMS
ONLY).
(4) PROVISIONS ON THE STATE'S COMPLIANCE MONITORING AND ENFORCEMENT
PROGRAM INCLUDING:
(I) PROVISIONS FOR COORDINATION OF COMPLIANCE MONITORING ACTIVITIES
BY THE STATE AND BY EPA. THESE MAY SPECIFY THE BASIS ON WHICH THE
REGIONAL ADMINISTRATOR WILL SELECT FACILITIES OR ACTIVITIES WITHIN THE
STATE FOR EPA INSPECTION. THE REGIONAL ADMINISTRATOR WILL NORMALLY
NOTIFY THE STATE AT LEAST 7 DAYS BEFORE ANY SUCH INSPECTION; AND
(II) PROCEDURES TO ASSURE COORDINATION OF ENFORCEMENT ACTIVITIES.
(5) WHEN APPROPRIATE, PROVISIONS FOR JOINT PROCESSING OF PERMITS BY
THE STATE AND EPA, FOR FACILITIES OR ACTIVITIES WHICH REQUIE PERMITS
FROM BOTH EPA AND THE STATE UNDER DIFFERENT PROGRAMS. SEE SECTION
124.4.
(NOTE. -- TO PROMOTE EFFICIENCY AND TO AVOID DUPLICATION AND
INCONSISTENCY, STATES ARE ENCOURAGED TO ENTER INTO JOINT PROCESSING
AGREEMENTS WITH EPA FOR PERMIT ISSUANCE. LIKEWISE, STATES ARE
ENCOURAGED (BUT NOT REQUIRED) TO CONSIDER STEPS TO COORDINATE OR
CONSOLIDATE THEIR OWN PERMIT PROGRAMS AND ACTIVITIES.)
(6) PROVISIONS FOR MODIFICATION OF THE MEMORANDUM OF AGREEMENT IN
ACCORDANCE WITH THIS PART.
(C) THE MEMORANDUM OF AGREEMENT, THE ANNUAL PROGRAM GRANT AND THE
STATE/EPA AGREEMENT SHOULD BE CONSISTENT. IF THE STATE/EPA AGREEMENT
INDICATES THAT A CHANGE IS NEEDED IN THE MEMORANDUM OF AGREEMENT, THE
MEMORANDUM OF AGREEMENT MAY BE AMENDED THROUGH THE PROCEDURES SET FORTH
IN THIS PART. THE STATE/EPA AGREEMENT MAY NOT OVERRIDE THE MEMORANDUM
OF AGREEMENT.
(NOTE. -- DETAILED PROGRAM PRIORITIES AND SPECIFIC ARRANGEMENTS FOR
EPA SUPPORT OF THE STATE PROGRAM WILL CHANGE AND ARE THEREFORE MORE
APPROPRIATELY NEGOTIATED IN THE CONTEXT OF ANNUAL AGREEMENTS RATHER THAN
IN THE MOA. HOWEVER, IT MAY STILL BE APPROPRIATE TO SPECIFY IN THE MOA
THE BASIS FOR SUCH DETAILED AGREEMENTS, E.G., PROVISION IN THE MOA
SPECIFYING THAT EPA WILL SELECT FACILITIES IN THE STATE FOR INSPECTION
ANNUALLY AS PART OF THE STATE/EPA AGREEMENT.)
(D) STATE RCRA PROGRAMS ONLY. IN THE CASE OF STATE RCRA PROGRAMS THE
MEMORANDUM OF AGREEMENT SHALL ALSO PROVIDE THAT:
(1) EPA MAY CONDUCT COMPLIANCE INSPECTIONS OF ALL GENERATORS,
TRANSPORTERS, AND HWM FACILITIES IN EACH YEAR FOR WHICH THE STATE IS
OPERATING UNDER FINAL AUTHORIZATION. THE REGIONAL ADMINISTRATOR AND THE
STATE DIRECTOR MAY AGREE TO LIMITATIONS ON COMPLIANCE INSPECTIONS OF
GENERATORS, TRANSPORTERS, AND NON-MAJOR HWM FACILITIES.
(2) NO LIMITATIONS ON EPA COMPLIANCE INSPECTIONS OF GENERATORS,
TRANSPORTERS, OR NON-MAJOR HWM FACILITIES UNDER PARAGRAPH (D)(1) OF THIS
SECTION SHALL RESTRICT EPA'S RIGHT TO INSPECT ANY GENERATOR,
TRANSPORTER, OR HWM FACILITY WHICH IT HAS CAUSE TO BELIEVE IS NOT IN
COMPLIANCE WITH RCRA; HOWEVER, BEFORE CONDUCTING SUCH AN INSPECTION,
EPA WILL NORMALLY ALLOW THE STATE A REASONABLE OPPORTUNITY TO CONDUCT A
COMPLIANCE EVALUATION INSPECTION.
(3) THE STATE DIRECTOR SHALL PROMPTLY FORWARD TO EPA COPIES OF DRAFT
PERMITS AND PERMIT APPLICATIONS FOR ALL MAJOR HWM FACILITIES FOR REVIEW
AND COMMENT. THE REGIONAL ADMINISTRATOR AND THE STATE DIRECTOR MAY
AGREE TO LIMITATIONS REGARDING REVIEW OF AND COMMENT ON DRAFT PERMITS
AND/OR PERMIT APPLICATIONS FOR NON-MAJOR HWM FACILITIES. THE STATE
DIRECTOR SHALL SUPPLY EPA COPIES OF FINAL PERMITS FOR ALL MAJOR HWM
FACILITIES.
(4) THE REGIONAL ADMINISTRATOR SHALL PROMPTLY FORWARD TO THE STATE
DIRECTOR INFORMATION OBTAINED PRIOR TO PROGRAM APPROVAL IN NOTIFICATIONS
PROVIDED UNDER SECTION 3010(A) OF RCRA. THE REGIONAL ADMINISTRATOR AND
THE STATE DIRECTOR SHALL AGREE ON PROCEDURES FOR THE ASSIGNMENT OF EPA
IDENTIFICATION NUMBERS FOR NEW GENERATORS, TRANSPORTERS, TREATMENT,
STORAGE, AND DISPOSAL FACILITIES.
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EPA CONSOLIDATED PERMIT REGULATIONS
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(5) THE STATE DIRECTOR SHALL REVIEW ALL PERMITS ISSUED UNDER STATE
LAW PRIOR TO THE DATE OF PROGRAM APPROVAL AND MODIFY OR REVOKE AND
REISSUE THEM TO REQUIRE COMPLIANCE WITH THE REQUIREMENTS OF THIS PART.
THE REGIONAL ADMINISTRATOR AND THE STATE DIRECTOR SHALL ESTABLISH A TIME
WITHIN WHICH THIS REVIEW MUST TAKE PLACE.
(E) STATE NPDES PROGRAMS ONLY. IN THE CASE OF STATE NPDES PROGRAMS
THE MEMORANDUM OF AGREEMENT SHALL ALSO SPECIFY THE EXTENT TO WHICH EPA
WILL WAIVE ITS RIGHT TO REVIEW, OBJECT TO, OR COMMENT UPON STATE-ISSUED
PERMITS UNDER SECTIONS 402(D)(3), (E) OR (F) OF CWA. WHILE THE REGIONAL
ADMINISTRATOR AND THE STATE MAY AGREE TO WAIVE EPA REVIEW OF CERTAIN
"CLASSES OR CATEGORIES" OF PERMITS, NO WAIVER OF REVIEW MAY BE GRANTED
FOR THE FOLLOWING DISCHARGES:
(1) DISCHARGES INTO THE TERRITORIAL SEA;
(2) DISCHARGES WHICH MAY AFFECT THE WATERS OF A STATE OTHER THAN THE
ONE IN WHICH THE DISCHARGE ORIGINATES;
(3) DISCHARGES PROPOSED TO BE REGULATED BY GENERAL PERMITS (SEE
SECTION 122.59);
(4) DISCHARGES FROM PUBLICLY OWNED TREATMENT WORKS WITH A DAILY
AVERAGE DISCHARGE EXCEEDING 1 MILLION GALLONS PER DAY;
(5) DISCHARGES OF UNCONTAMINATED COOLING WATER WITH A DAILY AVERAGE
DISCHARGE EXCEEDING 500 MILLION GALLONS PER DAY;
(6) DISCHARGES FROM ANY MAJOR DISCHARGER OR FROM ANY DISCHARGER
WITHIN ANY OF THE 21 INDUSTRIAL CATEGORIES LISTED IN APPENDIX A TO PART
122;
(7) DISCHARGES FROM OTHER SOURCES WITH A DAILY AVERAGE DISCHARGE
EXCEEDING 0.5 (ONE-HALF) MILLION GALLONS PER DAY, EXCEPT THAT EPA REVIEW
OF PERMITS FOR DISCHARGES OF NON-PROCESS WASTEWATER MAY BE WAIVED
REGARDLESS OF FLOW.
(F) STATE SECTION 404 PROGRAMS ONLY. (1) IN THE CASE OF STATE
SECTION 404 PROGRAMS, THE MEMORANDUM OF AGREEMENT WITH THE REGIONAL
ADMINISTRATOR SHALL ALSO SPECIFY:
(I) THE CATEGORIES (INCLUDING ANY CLASS, TYPE, OR SIZE WITHIN SUCH
CATEGORIES) OF DISCHARGES FOR WHICH EPA WILL WAIVE REVIEW OF
STATE-ISSUED PERMIT APPLICATIONS, DRAFT PERMITS, AND DRAFT GENERAL
PERMITS. WHILE THE REGIONAL ADMINISTRATORS AND THE STATE, AFTER
CONSULTATION WITH THE CORPS OF ENGINEERS, THE U.S. FISH AND WILDLIFE
SERVICE, AND THE NATIONAL MARINE FISHERIES SERVICE, MAY AGREE TO WAIVE
FEDERAL REVIEW OF CERTAIN "CLASSES OR CATEGORIES" OF PERMITS, NO WAIVER
MAY BE GRANTED FOR THE FOLLOWING ACTIVITIES:
(A) DISCHARGES WHICH MAY EFFECT THE WATERS OF A STATE OTHER THAN THE
ONE IN WHICH THE DISCHARGE ORIGINATES;
(B) MAJOR DISCHARGES;
(C) DISCHARGES INTO CRITICAL AREAS ESTABLISHED UNDER STATE OR FEDERAL
LAW INCLUDING FISH AND WILDLIFE SANCTUARIES OR REFUGES, NATIONAL AND
HISTORICAL MONUMENTS, WILDERNESS AREAS AND PRESERVES, NATIONAL AND STATE
PARKS, COMPONENTS OF THE NATIONAL WILD AND SCENIC RIVERS SYSTEM, THE
DESIGNATED CRITICAL HABITAT OF THREATENED OR ENDANGERED SPECIES, AND
SITES IDENTIFIED OR PROPOSED UNDER THE NATIONAL HISTORIC PRESERVATION
ACT;
(D) DISCHARGES PROPOSED TO BE REGULATED BY GENERAL PERMITS; OR
(E) DISCHARGES KNOWN OR SUSPECTED TO CONTAIN TOXIC POLLUTANTS IN
TOXIC AMOUNTS UNDER SECTION 307(A)(1) OF CWA OR HAZARDOUS SUBSTANCES IN
REPORTABLE QUANTITIES UNDER SECTION 311 OF CWA.
(II) A DEFINITION OF MAJOR DISCHARGES.
(2) IN THE CASE OF STATE SECTION 404 PROGRAMS, WHERE MORE THAN ONE
AGENCY WITHIN A STATE HAS RESPONSIBILITY FOR ADMINISTERING THE PROGRAM,
ALL OF THE RESPONSIBLE AGENCIES SHALL BE PARTIES TO THE MEMORANDUM OF
AGREEMENT.
(G) STATE NPDES AND SECTION 404 PROGRAMS ONLY. WHENEVER A WAIVER IS
GRANTED UNDER PARAGRAPHS (E) OR (F)(1) OF THIS SECTION, THE MEMORANDUM
OF AGREEMENT SHALL CONTAIN:
(1) A STATEMENT THAT THE REGIONAL ADMINISTRATOR RETAINS THE RIGHT TO
TERMINATE THE WAIVER AS TO FUTURE PERMIT ACTIONS, IN WHOLE OR IN PART,
AT ANY TIME BY SENDING THE STATE DIRECTOR WRITTEN NOTICE OF TERMINATION;
AND
(2) A STATEMENT THAT THE STATE SHALL SUPPLY EPA AND, IN THE CASC OF
STATE SECTION 404 PROGRAMS, THE CORPS OF ENGINEEFS, THE U.S. FISH AND
WILDLIFE SERVICE, AND THE NATIONAL MARINE FISHERIES SERVICE (UNLESS
RECEIPT IS WAIVED IN WRITING), WITH COPIES OF FINAL PERMITS.
(A) ALL STATE PROGRAMS UNDER THIS PART MUST HAVE LEGAL AUTHORITY TO
IMPLEMENT EACH OF THE FOLLOWING PROVISIONS AND MUST BE ADMINISTERED IN
CONFORMANCE WITH EACH; EXCEPT THAT STATES ARE NOT PRECLUDED FROM
OMITTING OR MODIFYING ANY PROVISIONS TO IMPOSE MORE STRINGENT
REQUIREMENTS:
(1) SECTION 122.4 -- (APPLICATION FOR A PERMIT), EXCEPT IN THE CASE
OF SECTION 122.4(D) FOR STATE SECTION 404 PROGRAMS;
(2) SECTION 122.0 -- (SIGNATORIES);
(3) SECTION 122.7 -- (APPLICABLE PERMIT CONDITIONS);
(4) SECTION 122.8 -- (ESTABLISHING PERMIT CONDITIONS);
(4) SECTION 122.0 -- (DURATION);
(6) SECTION 122.10(A) -- (SCHEDULES OF COMPLIANCE);
(7) SECTION 122.11 -- (MONITORING REQUIREMENTS);
(8) SECTION 122.13(A) AND (B) -- (EFFECT OF PERMIT);
(9) SECTION 122.14 -- (PERMIT TRANSFER);
(10) SECTION 122.15 -- (PERMIT MODIFICATION);
(11) SECTION 122.16 -- (PERMIT TERMINATION);
(12) SECTION 122.18 -- (NONCOMPLIANCE REPORTING);
(13) SECTION 122.19 (B)-(D) -- (CONFIDENTIAL INFORMATION);
(14) SECTION 124.3(A) -- (APPLICATION FOR A PERMIT);
(15) SECTION 124.5(A), (C), (D), AND (F) -- (MODIFICATION OF
PERMITS), EXCEPT AS PROVIDED IN SECTION 123.100(B)(2) FOR STATE SECTION
404 PROGRAMS;
(16) SECTION 124.6 (A), (C), (D), AND (E) -- (DRAFT PERMIT), EXCEPT
AS PROVIDED IN SECTION 123.100(B)(2) FOR STATE SECTION 404 PROGRAMS;
(17) SECTION (17) SECTION 124.8 -- TFACT SHEETS), EXCEPT AS PROVIDED
IN SECTION 123.100(B)(2) FOR STATE SECTION 404 PROGRAMS;
(18) SECTION 124.10 (A)(1)(II), (A)(1)(III), (A)(1)(V), (B), (C),
(D), AND (E) -- (PUBLIC NOTICE);
(19) SECTION 124.11 -- (PUBLIC COMMENTS AND REQUESTS FOR HEARINGS);
(20) SECTION 124.12(A) -- (PUBLIC HEARINGS); AND
(21) SECTION 124.17 (A) AND (C) -- (RESPONSE TO COMMENTS).
(NOTE. -- STATES NEED NOT IMPLEMENT PROVISIONS IDENTICAL TO THE ABOVE
LISTED PROVISIONS OR THE PROVISIONS LISTED IN SECTIONS 123.7 (B)-(D).
IMPLEMENTED PROVISIONS MUST, HOWEVER, ESTABLISH REQUIREMENTS AT LEAST AS
STRINGENT AS THE CORRESPONDING LISTED PROVISIONS. WHILE STATES MAY
IMPOSE MORE STRINGENT REQUIREMENTS, THEY MAY NOT MAKE ONE REQUIREMENT
MORE LENIENT AS A TRADEOFF FOR MAKING ANOTHER REQUIREMENT MORE
STRINGENT; FOR EXAMPLE, BY REQUIRING THAT PUBLIC HEARINGS BE HELD PRIOR
TO ISSUING ANY PERMIT WHILE REDUCING THE AMOUNT OF ADVANCE NOTICE OF
SUCH A HEARING.
STATE PROGRAMS MAY, IF THEY HAVE ADEQUATE LEGAL AUTHORITY, IMPLEMENT
ANY OF THE PROVISIONS OF PARTS 122 AND 124. SEE, FOR EXAMPLE, SECTION
122.5(D) (CONTINUATION OF PERMITS) AND SECTTON 124.4 (CONSOLIDATION OF
PERMIT PROCESSING).
(B) STATE RCRA PROGRAMS ONLY. ANY STATE HAZARDOUS WASTE PROGRAM
SHALL HAVE LEGAL AUTHORITY TO IMPLEMENT EACH OF THE FOLLOWING PROVISIONS
AND MUST BE ADMINISTERED IN CONFORMANCE WITH EACH, EXCEPT THAT STATES
ARE NOT PRECLUDED FROM OMITTING OR MODIFYING ANY PROVISIONS TO IMPOSE
MORE STRINGENT REQUIREMENTS:
(1) SECTION 122.21(D)(2) -- (SPECIFIC INCLUSIONS);
(2) SECTION 122.22 -- (APPLICATION FOR A PERMIT);
(3) SECTION 122.24 -- (CONTENTS OF PART A);
(4) SECTION 122.25 -- (CONTENTS OF PART B);
(NOTE. -- STATES NEED NOT USE A TWO PART PERMIT APPLICATION PROCESS.
THE STATE APPLICATION PROCESS MUST, HOWEVER, REQUIRE INFORMATION IN
SUFFICIENT DETAIL TO SATISFY THE REQUIREMENTS OF SECTIONS 122.24 AND
122.25).
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FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 173 OF 225
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REGULATIONS
(5) SECTION 122.20 -- (PERMIT BY RULE);
(6) SECTION 122.27 -- (EMERGENCY PERMITS);
(7) SECTION 122.28 -- (ADDITIONAL PERMIT CONDITIONS);
(8) SECTION 122.29 -- (ESTABLISHING PERMIT CONDITIONS); AND
(9) SECTION 122.30 -- (INTERIM PERMITS FOR UIC WELLS).
(C) STATE UIC PROGRAMS ONLY. STATE UIC PROGRAMS SHALL HAVE LEGAL
AUTHORITY TO IMPLEMENT EACH OF THE FOLLOWING PROVISIONS AND MUST BE
ADMINISTERED IN CONFORMANCE WITH EACH; EXCEPT THAT STATES ARE NOT
PRECLUDED FROM OMITTING OR MODIFYING ANY PROVISIONS TO IMPOSE MORE
STRINGENT REQUIREMENTS:
(1) SECTION 122.32 -- (CLASSIFICATION OF INJECTION WELLS);
(2) SECTION 122.33 -- (PROHIBITION OF UNAUTHORIZED INJECTION);
(3) SECTION 122.34 -- (PROHIBITION OF MOVEMENT OF FLUIDS INTO
UNDERGROUND SOURCES OF DRINKING WATER);
(4) SECTION 122.35 -- (IDENTIFICATION OF UNDERGROUND SOURCES OF
DRINKING WATER AND EXEMPTED AQUIFERS);
(5) SECTION 122.36 -- (ELIMINATION OF CLASS IV WELLS);
(6) SECTION 122.37 -- (AUTHORIZATION BY RULE);
(7) SECTION 122.38 -- (AUTHORIZATION BY PERMIT);
(8) SECTION 122.39 -- (AREA PERMITS);
(9) SECTION 122.41 -- (ADDITIONAL PERMIT CONDITIONS);
(10) SECTION 122.42 -- (ESTABLISHING PERMIT CONDITIONS);
(11) SECTION 122.44 -- (CORRECTIVE ACTION); AND
(12) SECTION 122.45 -- (REQUIREMENTS FOR WELLS MANAGING HAZARDOUS
WASTES).
(D) STATE NPDES PROGRAMS ONLY. STATE NPDES PROGRAMS SHALL HAVE LEGAL
AUTHORITY TO IMPLEMENT EACH OF THE FOLLOWING PROVISIONS AND MUST BE
ADMINISTERED IN CONFORMANCE WITH EACH; EXCEPT THAT STATES ARE NOT
PRECLUDED FROM OMITTING OR MODIFYING ANY PROVISIONS TO IMPOSE MORE
STRINGENT REQUIREMENTS:
(1) SECTION 122.52 -- (PROHIBITIONS);
(2) SECTION 122.53 (A), (D)-(G) AND (I)-(K) -- (APPLICATION FOR A
PERMIT);
(3) SECTION 122.54 -- (CONCENTRATED ANIMAL FEEDING OPERATIONS);
(4) SECTION 122.55 -- (CONCENTRATED AQUATIC ANIMAL PRODUCTION
FACILITIES); (5) SECTION 122.56 -- (AQUACULTURE PROJECTS); (6) SECTION
122.57 -- (SEPARATE STORM SEWERS); (7) SECTION 122.58 --
(SILVICULTURE); (8) SECTION 122.59 -- (GENERAL PERMITS), PROVIDED THAT
STATES WHICH DO NOT SEEK TO IMPLEMENT THE GENERAL PERMIT PROGRAM UNDER
SECTION 122.59 NEED NOT DO SO;
(9) SECTION 122.60 -- (CONDITIONS APPLICABLE TO ALL PERMITS);
(10) SECTION 122.61 -- (CONDITIONS APPLICABLE TO SPECIFIED CATEGORIES
OF PERMITS);
(11) SECTION 122.62 -- (ESTABLISHING PERMIT CONDITIONS);
(12) SECTION 122.63 -- (CALCULATING NPDES CONDITIONS);
(13) SECTION 122.64 -- (DURATION OF PERMIT);
(14) SECTION 122.65 -- (DISPOSAL INTO WELLS);
(15) SECTION 124.56 -- (FACT SHEETS);
(16) SECTION 124.57(A) -- (PUBLIC NOTICE);
(17) SECTION 124.59 -- (COMMENTS FROM GOVERNMENT AGENCIES);
(18) SUBPARTS A, B, C, D, H, I, J, K AND L OF PART 125; AND
(19) 40 CFR PARTS 129, 133, AND SUBCHAPTER N.
(NOTE. -- FOR EXAMPLE, A STATE MAY IMPOSE MORE STRINGENT REQUIREMENTS
IN AN NPDES PROGRAM BY OMITTING THE UPSET PROVISION OF SECTION 122.60 OR
BY REQUIRING MORE PROMPT NOTICE OF AN UPSET.)
(E) STATE NPDES AND 404 PROGRAMS ONLY. (1) STATE NPDES AND 404
PERMIT PROGRAMS SHALL HAVE AN APPROVED CONTINUING PLANNING PROCESS UNDER
40 CFR SECTION 35.1500 AND SHALL ASSURE THAT THE APPROVED PLANNING
PROCESS IS AT ALL TIMES CONSISTENT WITH CWA.
(2) STATE NPDES AND 404 PROGRAMS SHALL ENSURE THAT ANY BOARD OR BODY
WHICH APPROVES ALL OR PORTIONS OF PERMITS SHALL NOT INCLUDE AS A MEMBER
ANY PERSON WHO RECEIVES, OR HAS DURING THE PREVIOUS 2 YEARS RECEIVED, A
SIGNIFICANT PORTION OF INCOME DIRECTLY OR INDIRECTLY FROM PERMIT HOLDERS
OR APPLICANTS FOR A PERMIT.
(I) FOR THE PURPOSES OF THIS PARAGRAPH:
(A) "BOARD OR BODY" INCLUDES ANY INDIVIDUAL, INCLUDING THE DIRECTOR,
WHO HAS OR SHARES AUTHORITY TO APPROVE ALL OR PORTIONS OF PERMITS EITHER
IN THE FIRST INSTANCE, AS MODIFIED OR REISSUED, OR ON APPEAL.
(B) "SIGNIFICANT PORTION OF INCOME" MEANS 10 PERCENT OR MORE OF GROSS
PERSONAL INCOME FOR A CALENDAR YEAR, EXCEPT THAT IT MEANS 50 PERCENT OR
MORE OF GROSS PERSONAL INCOME FOR A CALENDAR YEAR IF THE RECIPIENT IS
OVER 60 YEARS OF AGE AND IS RECEIVING THAT PORTION UNDER RETIREMENT,
PENSION, OR SIMILAR ARRANGEMENT.
(C) "PERMIT HOLDERS OR APPLICANTS FOR A PERMIT" DOES NOT INCLUDE ANY
DEPARTMENT OR AGENCY OF A STATE GOVERNMENT, SUCH AS A DEPARTMENT OF
PARKS OR A DEPARTMENT OF FISH AND WILDLIFE.
(D) "INCOME" INCLUDES RETIREMENT BENEFITS, CONSULTANT FEES, AND STOCK
DIVIDENDS.
(II) FOR THE PURPOSES OF THIS SUBPARAGRAPH, INCOME IS NOT RECEIVED
"DIRECTLY OR INDIRECTLY FROM PERMIT HOLDERS OR APPLICANTS FOR A PERMIT"
WHEN ITIS DERIVED FROM MUTUAL FUND PAYMENTS, OR FROM OTHER DIVERSIFIED
INVESTMENTS FOR WHICH THE RECIPIENT DOES NOT KNOW THE IDENTITY OF THE
PRIMARY SOURCES OF INCOME.
(A) STATE PROGRAMS SHALL HAVE PROCEDURES FOR RECEIPT, EVALUATION,
RETENTION AND INVESTIGATION FOR POSSIBLE ENFORCEMENT OF ALL NOTICES AND
REPORTS REQUIRED OF PERMITTEES AND OTHER REGULATED PERSONS (AND FOR
INVESTIGATION FOR POSSIBLE ENFORCEMENT OF FAILURE TO SUBMIT THESE
NOTICES AND REPORTS).
(B) STATE PROGRAMS SHALL HAVE INSPECTION AND SURVEILLANCE PROCEDURES
TO DETERMINE, INDEPENDENT OF INFORMATION SUPPLIED BY REGULATED PERSONS,
COMPLIANCE OR NONCOMPLIANCE WITH APPLICABLE PROGRAM REQUIREMENTS. THE
STATE SHALL MAINTAIN:
(1) A PROGRAM WHICH IS CAPABLE OF MAKING COMPREHENSIVE SURVEYS OF ALL
FACILITIES AND ACTIVITIES SUBJECT TO THE STATE DIRECTOR'S AUTHORITY TO
IDENTIFY PERSONS SUBJECT TO REGULATION WHO HAVE FAILED TO COMPLY WITH
PERMIT APPLICATION OR OTHER PROGRAM REQUIREMENTS. ANY COMPILATION
INDEX, OR INVENTORY OF SUCH FACILITIES AND ACTIVITIES SHALL BE MADE
AVAILABLE TO THE REGIONAL ADMINISTRATOR UPON REQUEST;
(2) A PROGRAM FOR PERIODIC INSPECTIONS OF THE FACILITIES AND
ACTIVITIES SUBJECT TO REGULATION. THESE INSPECTIONS SHALL BE CONDUCTED
IN A MANNER DESIGNED TO:
(I) DETERMINE COMPLIANCE OR NONCOMPLIANCE WITH ISSUED PERMIT
CONDITIONS AND OTHER PROGRAM REQUIREMENTS;
(II) VERIFY THE ACCURACY OF INFORMATION SUBMITTED BY PERMITTEES AND
OTHER REGULATED PERSONS IN REPORTING FORMS AND OTHER FORMS SUPPLYING
MONITORING DATA; AND
(III) VERIFY THE ADEQUACY OF SAMPLING, MONITORING, AND OTHER METHODS
USED BY PERMITTEES AND OTHER REGULATED PERSONS TO DEVELOP THAT
INFORMATION;
(3) A PROGRAM FOR INVESTIGATING INFORMATION OBTAINED REGARDING
VIOLATIONS OF APPLICABLE PROGRAM AND PERMIT REQUIREMENTS; AND
(4) PROCEDURES FOR RECEIVING AND ENSURING PROPER CONSIDERATION OF
INFORMATION SUBMITTED BY THE PUBLIC ABOUT VIOLATIONS. PUBLIC EFFORT IN
REPORTING VIOLATIONS SHALL BE ENCOURAGED, AND THE STATE DIRECTOR SHALL
MAKE AVAILABLE INFORMATION ON REPORTING PROCEDURES.
(C) THE STATE DIRECTOR AND STATE OFFICERS ENGAGED IN COMPLIANCE
EVALUATION SHALL HAVE AUTHORITY TO ENTER ANY SITE OR PREMTSES SUBJECT TO
REGULATION OR IN WHICH RECORDS RELEVANT TO PROGRAM OPERATION ARE KEPT IN
ORDER TO COPY ANY RECORDS, INSPECT, MONITOR OR OTHERWISE INVESTIGATE
COMPLIANCE WITH THE STATE PROGRAM INCLUDING COMPLIANCE WITH PERMIT
CONDITIONS AND OTHER PROGRAM REQUIREMENTS.
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FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 174 OF 225
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EPA
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REGULATIONS
STATES WHOSE LAW REQUIRES A SEARCH WARRANT BEFORE ENTRY CONFORM WITH
THIS REQUIREMENT.
(D) INVESTIGATORY INSPECTION SHALL BE CONDUCTED, SAMPLES SHALL BE
TAKEN AND OTHER INFORMATION SHALL BE GATHERED IN A MANNER (E.G., USING
PROPER "CHAIN OF CUSTODY" PROCEDURES) THAT WILL PRODUCE EVIDENCE
ADMISSABLE IN AN ENFORCEMENT PROCEEDING OR IN COURT.
(E) STATE NPDES PROGRAMS ONLY. STATE NPDES COMPLIANCE EVALUATION
PROGRAMS SHALL HAVE PROCEDURES AND ABILITY FOR:
(1) MAINTAINING A COMPREHENSIVE INVENTORY OF ALL SOURCES COVERED BY
NPDES PERMITS AND A SCHEDULE OF REPORTS REQUIRED TO BE SUBMITTED BY
PERMITTEES TO THE STATE AGENCY;
(2) INITIAL SCREENING (I.E., PREENFORCEMENT EVALUATION) OF ALL PERMIT
OR GRANT-RELATED COMPLIANCE INFORMATION TO IDENTIFY VIOLATIONS AND TO
ESTABLISH PRIORITIES FOR FURTHER SUBSTANTIVE TECHNICAL EVALUATION;
(3) WHEN WARRANTED, CONDUCTING A SUBSTANTIVE TECHNICAL EVALUATION
FOLLOWING THE INITIAL SCREENING OF ALL PERMIT OR GRANT-RELATED
COMPLIANCE INFORMATION TO DETERMINE THE APPROPRIATE AGENCY RESPONSE;
(4) MAINTAINING A MANAGEMENT INFORMATION SYSTEM WHICH SUPPORTS THE
COMPLIANCE EVALUATION ACTIVITIES OF THIS PART; AND
(5) INSPECTING THE FACILITIES OF ALL MAJOR DISCHARGERS AT LEAST
ANNUALLY.
(A) ANY STATE AGENCY ADMINISTERING A PROGRAM SHALL HAVE AVAILABLE THE
FOLLOWING REMEDIES FOR VIOLATIONS OF STATE PROGRAM RQUIREMENTS:
(1) TO RESTRAIN IMMEDIATELY AND EFFECTIVELY ANY PERSON BY ORDER OR BY
SUIT IN STATE COURT FROM ENGAGING IN ANY UNAUTHORIZED ACTIVITY WHICH IS
ENDANGERING OR CAUSING DAMAGE TO PUBLIC HEALTH OR THE ENVIRONMENT;
(NOTE. -- THIS PARAGRAPH REQUIRES THAT STATES HAVE A MECHANISM (E.G.,
AN ADMINISTRATIVE CEASE AND DESIST ORDER OR THE ABILITY TO SEEK A
TEMPORARY RESTRAINING ORDER) TO STOP ANY UNAUTHORIZED ACTIVITY
ENDANGERING PUBLIC HEALTH OR THE ENVIRONMENT.)
(2) TO SUE IN COURTS OF COMPETENT JURISDICTION TO ENJOIN ANY
THREATENED OR CONTINUING VIOLATION OF ANY PROGRAM REQUIREMENT, INCLUDING
PERMIT CONDITIONS, WITHOUT THE NECESSITY OF A PRIOR REVOCATION OF THE
PERMIT;
(3) TO ASSESS OR SUE TO RECOVER IN COURT CIVIL PENALTIES AND TO SEEK
CRIMINAL REMEDIES, INCLUDING FINES, AS FOLLOWS:
(I) STATE RCRA PROGRAMS ONLY. (A) CIVIL PENALTIES SHALL BE
RECOVERABLE FOR ANY PROGRAM VIOLATION IN AT LEAST THE AMOUNT OF $10,000
PER DAY.
(B) CRIMINAL REMEDIES SHALL BE OBTAINABLE AGAINST ANY PERSON WHO
KNOWINGLY TRANSPPRTS ANY HAZARDOUS WASTE TO AN UNPERMITTED FACILITY;
WHO TREATS, STORES, OR DISPOSES OF HAZARDOUS WASTE WITHOUT A PERMIT; OR
WHO MAKES ANY FALSE STATEMENT OR REPRESENTATION IN ANY APPLICATION,
LABEL, MANIFEST, RECORD, REPORT, PERMIT OR OTHER DOCUMENT FILED,
MAINTAINED, OR USED FOR PURPOSES OF PROGRAM COMPLIANCE. CRIMINAL FINES
SHALL BE RECOVERABLE IN AT LEAST THE AMOUNT OF $10,000 PER DAY FOR EACH
VIOLATION, AND IMPRISONMENT FOR AT LEAST SIX MONTHS SHALL BE AVAILABLE.
(II) STATE UIC PROGRAMS ONLY. (A) FOR ALL WELLS EXCEPT CLASS II
WELLS, CIVIL PENALTIES SHALL BE RECOVERABLE FOR ANY PROGRAM VIOLATION IN
AT LEAST THE AMOUNT OF $2,500 PER DAY. FOR CLASS II WELLS, CIVIL
PENALTIES SHALL BE RECOVERABLE FOR ANY PROGRAM VIOLATION IN AT LEAST THE
AMOUNT OF $1,000 PER DAY.
(B) CRIMINAL FINES SHALL BE RECOVERABLE IN AT LEAST THE AMOUNT OF
$5,000 PER DAY AGAINST ANY PESON WHO WILLFULLY VIOLATES ANY PROGRAM
REQUIREMENT, OR, FOR CLASS II WELLS, PIPELINE (PRODUCTION) SEVERANCE
SHALL BE IMPOSABLE AGAINST ANY PERSON WHO WILLFULLY VIOLATES ANY PROGRAM
REQUIREMENT.
(III) STATE NPDES AND SECTION 404 PROGRAMS ONLY. (A) CIVIL PENALTIES
SHALL BE RECOVERABLE FOR THE VIOLATION OF ANY NPDES OR SECTION 404
PERMIT CONDITION; ANY NPDES OR SECTION 404 FILING REQUIREMENT; ANY
DUTY TO ALLOW OR CARRY OUT INSPECTION, ENTRY OR MONITORING ACTIVITIES;
OR ANY REGULATION OR ORDERS ISSUED BY THE STATE DIRECTOR. SUCH
PENALTIES SHALL BE ASSESSABLE IN AT LEAST THE AMOUNT OF $5,000 PER DAY
FOR EACH VIOLATION.
(B) CRIMINAL FINES SHALL BE RECOVERABLE AGAINST ANY PERSON WHO
WILLFULLY OR NEGLIGENTLY VIOLATES ANY APPLICABLE STANDARDS OR
LIMITATIONS; ANY NPDES OR SECTION 404 PERMIT CONDITION; OR ANY NPDES
OR SECTION 404 PERMIT CONDITION; OR ANY NPDES OR SECTION 404 FILING
REQUIREMENT. SUCH FINES SHALL BE ASSESSABLE IN AT LEAST THE AMOUNT OF
$10,000 PER DAY FOR EACH VIOLATION.
(NOTE. -- STATES WHICH PROVIDE CRIMINAL REMEDIES BASED ON "CRIMINAL
NEGLIGENCE." "GROSS NEGLIGENCE" OR STRICT LIABILITY SATISFY THE
REQUIREMENT OF PARAGRAPH (A)(3)(III)(B) OF THIS SECTION.)
(C) CRIMINAL FINES SHALL BE RECOVERABLE AGAINST ANY PERSON WHO
KNOWINGLY MAKES ANY FALSE STATEMENT, REPRESENTATION OR CERTIFICATION IN
ANY NPDES OR SECTION 404 FORM, IN ANY NOTICE OR REPORT REQUIRED BY AN
NPDES OR SECTION 404 PERMIT, OR WHO KNOUINGLY RENDERS INACCURATE ANY
MONITORING DEVICE OR METHOD REQUIRED TO BE MAINTAINED BY THE DIRECTOR.
SUCH FINES SHALL BE RECOVERABLE IN AT LEAST THE AMOUNT OF $5,000 FOR
EACH INSTANCE OF VIOLATION.
(NOTE. -- IN MANY STATES THE STATE DIRECTOR WILL BE REPRESENTED IN
STATE COURTS BY THE STATE ATTORNEY GENERAL OR OTHER APPROPFIATE LEGAL
OFFICER. ALTHOUGH THE STATE DIRECTOR NEED NOT APPEAR IN COURT ACTIONS
HE OR SHE SHOULD HAVE POWER TO REQUEST THAT ANY OF THE ABOVE ACTIONS BE
BROUGHT.)
(B)(1) THE MAXIMUM CIVIL PENALTY OR CRIMINAL FINE (AS PROVIDED IN
PARAGRAPH (A)(3) OF THIS SECTION) SHALL BE ASSESSABLE FOR EACH INSTANCE
OF VIOLATON AND, IF THE VIOLATION IS CONTINUOUS, SHALL BE ASSESSABLE UP
TO THE MAXIMUM AMOUNT FOR EACH DAY OF VIOLATION.
(2) THE BURDEN OF PROOF AND DEGREE OF KNOWLEDGE OR INTENT REQUIRED
UNDER STATE LAW FOR ESTABLISHING VIOLATIONS UNDER PARAGRAPH (A)(3) OF
THIS SECTION, SHALL BE NO GREATER THAN THE BURDEN OF PROOF OR DEGREE OF
KNOWLEDGE OR INTENT EPA MUST PROVIDE WHEN IT BRINGS AN ACTION UNDER THE
APPROPRIATE ACT.
(NOTE. -- FOR EXAMPLE, THIS REQUIREMENT IS NOT MET IF STATE LAW
INCLUDES MENTAL STATE AS AN ELEM-NT OF PROOF FOR CIVIL VIOLATIONS.)
(C) ANY CIVIL PENALTY ASSESSED, SOUGHT OR AGREED UPON BY THE STATE
DIRECTOR UNDER PARAGRAPH (A)(3) OF THIS SECTION SHALL BE APPROPRIATE TO
THE VIOLATION. A CIVIL PENALTY AGREED UPON BY THE STATE DIRECTOR IN
SETTLEMENT OF ADMINISTRATIVE OR JUDICIAL LITIGATION MAY BE ADJUSTED BY A
PERCENTAGE WHICH REPRESENTS THE LIKELIHOOD OF SUCCESS IN ESTABLISHING
THE UNDERLYING VIOLATION(S) IN SUCH LITIGATION. IF SUCH CIVIL PENALTY,
TOGETHER WITH THE COSTS OF EXPEDITIOUS COMPLIANCE, WOULD BE SO SEVERELY
DISPROPORTIONATE TO THE RESOURCES OF THE VIOLATOR AS TO JEOPARDIZE
CONTINUANCE IN BUSINESS, THE PYAMENT OF THE PENALTY MAY BE DEFERRED OR
THE PENALTY MAY BE FORGIVEN IN WHOLE OR PART, AS CIRCUMSTANCES WARRANT.
IN THE CASE OF A PENALTY FOR A FAILURE TO MEET A STATUTORY OR FINAL
PERMIT COMPLIANCE DEADLINT, "APPROPRIATE TO THE VIOLATION," AS USED IN
THIS PARAGRAPH, MEANS A PENALTY WHICH IS EQUAL TO:
(1) AN AMOUNT APPROPRIATE TO REDRESS THE HARD OR RISK TO PUBLIC
HEALTH OR THE ENVIRONMENT; PLUS
(2) AN AMOUNT APPROPRIATE TO REMOVE THE ECONOMIC BENEFIT GAINED OR TO
BE GAINED FROM DELAYED COMPLIANCE; PLUS
(3) AN AMOUNT APPROPRIATE AS A PENALTY FOR THE VIOLATOR'S DEGREE OF
RECALCITRANCE, DEFIANCE, OR INDIFFERENCE TO REQUIREMENTS OF THE LAW;
PLUS.
(4) AN AMOUNT APPROPRIATE TO RECOVER UNUSUAL OR EXTRAORDINARY
ENFORCEMENT COSTS THRUST UPON THE PUBLIC; MINUS
(5) AN AMOUNT, IF ANY, APPROPRIATE TO REFLECT ANY PART OF THE
NONCOMPLIANCE ATTRI0UTABLE TO THE GOVERNMENT ITSELF; AND MINUS
(6) AN AMOUNT APPROPRIATE TO REFLECT ANY PART OF THE NONCOMPLIANCE
CAUSED BY FACTORS COMPLETELY BEYOND THE VIOLATOR'S CONTROL (E.G.,
FLOODS, FIRES).
(NOTE.-IN ADDITION TO THE REQUIREMENTS OF THIS PARAGRAPH, THE STATE
MAY HAVE OTHER ENFORCEMENT REMEDIES. THE FOLLOWING ENFORCEMENT OPTIONS,
WHILE NOT MANDATORY, ARE HIGHLY RECOMMENDED:
PROCEDURES FOR ASSESSMENT BY THE STATE OF THE COSTS OF
INVESTIGATIONS, INSPECTIONS, OR MONITORING SURVEYS WHICH LEAD TO THE
ESTABLISHMENT OF VIOLATIONS:
PROCEDURES WHICH ENABLE THE STATE TO ASSESS OR TO SUE ANY PERSONS
RESPONSIBLE FOR UNAUTHORIZED ACTIVITIES FOR ANY EXPENSES INCURRED BY THE
STATE IN REMOVING, CORRECTING, OR TERMINATING ANY ADVERSE EFFECTS UPON
HUMAN HEALTH AND THE ENVIRONMENT RESULTING FROM THE UNAUTHORIZED
ACTIVITY, WHETHER OR NOT ACCIDENTAL;
PROCEDURES WHICH ENABLE THE STATE TO SUE FOR COMPENSATION FOR ANY
LOSS OR DESTRUCTION OF WILDLIFE, FISH OR AQUATIC LIFE, OR THEIR HABITAT,
AND FOR ANY OTHER DAMAGES CAUSED BY UNAUTHORIZED ACTIVITY, EITHER TO THE
STATE OR TO ANY RESIDENTS OF THE STATE WHO ARE DIRECTLY AGGRIEVED BY THE
UNAUTHORIZED ACTIVITY, OR BOTH; AND
PROCEDURES FOR THE ADMINISTRATIVE ASSESSMENT OF PENALTIES BY THE
DIRECTOR.)
(D) ANY STATE ADMINISTERING A PROGRAM SHALL PROVIDE FOR PUBLIC
PARTICIPATION IN THE STATE ENFORCEMENT PROCESS BY PROVIDING EITHER:
(1) AUTHORITY WHICH ALLOWS INTERVENTION AS OF RIGHT IN ANY CIVIL OR
ADMINISTRATIVE ACTION TO OBTAIN REMEDIES SPECIFIED IN PARAGRAPHS (A)
(1), (2) OR (3) OF THIS SECTION BY ANY CITIZEN HAVING ANY INTEREST WHICH
IS OR MAY BE ADVERSELY AFFECTED; OR
(2) ASSURANCE THAT THE STATE AGENCY OR ENFORCEMENT AUTHORITY WILL:
(I) INVESTIGATE AND PROVIDE WRITTEN RESPONSES TO ALL CITIZEN
COMPLAINTS SUBMITTED PURSUANT TO THE PROCEDURES SPECIFIED IN SECTION
123.8(B)(4);
(II) NOT OPPOSE INTERVENTION BY ANY CITIZEN WHEN PERMISSIVE
INTERVENTION MAY BE AUTHORIZED BY STATUTE, RULE, OR REGULATION AND
(III) PUBLISH NOTICE OF AN PROVIDE AT LEAST 30 DAYS FOR PUBLIC
COMMENT ON ANY PROPOSED SETTLEMENT OF A STATE ENFORCMENT ACTION.
(A) ANY INFORMATION OBTAINED OR USED IN THE ADMINISTRATION OF A STATE
PROGRAM SHALL BE AVAILABLE TO EPA UPON REQUEST WITHOUT RESTRICTION. IF
THE INFORMATION HAS BEEN SUBMITTED TO THE STATE UNDER A CLAIM OF
CONFIDENTIALITY, THE STATE MUST SUBMIT THAT CLAIM TO EPA WHEN PROVIDING
INFORMATION UNDER THIS SECTION. ANY INFORMATION OBTAINED FROM A STATE
AND SUBJECT TO A CLAIM OF CONFIDENTIALITY WILL BE TREATED IN ACCORDANCE
WITH THE REGULATIONS IN 40 CFR PART 2. IF EPA OBTAINS FROM A STATE
INFORMATION THAT IS NOT CLAIMED TO BE CONFIDENTIAL, EPA MAY MAKE THAT
INFORMATION AVAILABLE TO THE PUBLIC WITHOUT FURTHER NOTICE.
(B) EPA SHALL FURNISH TO STATES WITH APPROVED PROGRAMS TE INFORMATION
IN ITS FILES NOT SUBMITTED UNDER A CLAIM OF CONFIDENTIALITY WHICH THE
STATE NEEDS TO IMPLEMENT ITS APPROVED PROGRAM. EPA SHALL FURNISH TO
STATES WITH APPROVED PROGRAMS INFORMATION SUBMITTED TO EPA UNDER A CLAIM
OF CONFIDENTIALITY, WHICH THE STATE NEEDS TO IMPLEMENT ITS APPROVED
PROGRAM, SUBJECT TO THE CONDITIONS IN 40 CFR PART 2.
(1) ISSUANCE OF STATE PERMITS UNDER THIS PART MAY BE COORDINATED WITH
ISSUANCE OF RCRA, UIC, NPDES, AND 404 PERMITS WHETHER THEY ARE
CONTROLLED BY THE STATE, EPA, OR THE CORPS OF ENGINEERS, SEE SECTION
124.4.
(B) THE STATE DIRECTOR OF ANY APPROVED PROGRAM WHICH MAY AFFECT THE
PLANNING FOR AND DEVELOPMENT OF HAZARDOUS WASTE MANAGEMENT FACILITIES
AND PRACTICES SHALL CONSULT AND COORDINATE WITH AGENCIES DESIGNATED
UNDER SECTION 4006(B) OF RCRA (40 CFR PART 255) AS RESPONSIBLE FOR THE
DEVELOPMENT AND IMPLEMENTATION OF STATE SOLID WASTE MANAGEMENT PLANS
UNDER SECTION 4002(B) OF RCRA (40 CFR PART 256).
THE PROCESS FOR EPA APPROVAL OF STATE PROGRAMS IS SET OUT IN SECTIONS
123.39 (RCRA), 123.54 (UIC), 123.77 (NPDES), AND 123.104 (404).
(A) EITHER EPA OR THE APPROVED STATE MAY INITIATE PROGRAM REVISION.
PROGRAM REVISION MAY BE NECESSARY WHEN THE CONTROLLING FEDERAL OR STATE
STATUTORY OR REGULATORY AUTHORITY IS MODIFIED OR SUPPLEMENTED. THE
STATE SHALL KEEP EPA FULLY INFORMED OF ANY PROPOSED MODIFICATIONS TO ITS
BASIC STATUTORY OR REGULATORY AUTHORITY, ITS FORMS, PROCEDURES, OR
PRIORITIES.
(B) REVISION OF A STATE PROGRAM SHALL BE ACCOMPLISHED AS FOLLOWS:
(1) THE STATE SHALL SUBMIT A MODIFIED PROGRAM DESCRIPTION, ATTORNEY
GENERAL'S STATEMENT, MEMORANDUM OF AGREEMENT, SO SUCH OTHER DOCUMENTS AS
EPA DETERMINES TO BE NECESSARY UNDER THE CIRCUMSTANCES.
(2) WHENEVER EPA DETERMINES THAT THE PROPOSED PROGRAM REVISION IS
SUBSTANTIAL, EPA SHALL ISSUE PU0LIC NOTICE AND PROVIDE AN OPPORTUNITY TO
COMMENT FOR A PERIOD OF AT LEAST 30 DAYS. THE PUBLIC NOTICE SHALL BE
MAILED TO INTERESTED PERSONS AND SHALL BE PUBLISHED IN THE FEDERAL
REGISTER AND IN ENOUGH OF THE LARGEST NEWSPAPERS IN THE STATE TO PROVIDE
STATEWIDE COVERAGE. THE PUBLIC NOTICE SHALL SUMMARIZE THE PROPOSED
REVISIONS AND PROVIDE FOR THE OPPORTUNITY TO REQUEST A PUBLIC HEARING.
SUCH A HEARING WILL BE HELD IF THERE IS SIGNIFICANT PUBLIC INTEREST
BASED ON REQUESTS RECEIVED.
(3) THE ADMINISTRATOR SHALL APPROVE OR DISAPPROVE PROGRAM REVISIONS
BASED ON THE REQUIREMENTS OF THIS PART AND OF THE APPROPRIATE ACT.
(4) A PROGRAM REVISION SHALL BECOME EFFECTIVE UPON THE APPROVAL OF
THE ADMINISTRATOR. NOTICE OF APPROVAL OF ANY SUBSTANTIAL REVISION SHALL
BE PUBLISHED IN THE FEDERAL REGISTER. NOTICE OF APPROVAL OF
NON-SUBSTANTIAL PROGRAM REVISIONS MAY BE GIVEN BY A LETTER FROM THE
ADMINISTRATOR TO THE STATE GOVERNOR OR HIS DESIGNEE.
(C) STATES WITH APPROVED PROGRAMS SHALL NOTIFY EPA WHENEVER THEY
PROPOSE TO TRANSFER ALL OR PART OF ANY PROGRAM FROM THE APPROVED STATE
AGENCY TO ANY OTHER STATE AGENCY, AND SHALL IDENTIFY ANY NEW DIVISION OR
RESPONSIBILITIES AMONG THE AGENCIES INVOLVED. THE NEW AGENCY IS NOT
AUTHORIZED TO ADMINISTER THE PROGRAM UNTIL APPROVED BY THE ADMINISTRATOR
UNDER PARAGRAPH (B) OF THIS SECTION. ORGANIZATIONAL CHARTS REQUIRED
UNDER SECTION 123.4(B) SHALL BE REVISED AND RESUBMITTED.
(D) WHENEVER THE ADMINISTRATOR HAS REASON TO BELIEVE THAT
CIRCUMSTANCES HAVE CHANGED WITH RESPECT TO A STATE PROGRAM, HE MAY
REQUEST, AND THE STATE SHALL PROVIDE, A SUPPLEMENTAL ATTORNEY GENERAL'S
STATEMENT, PROGRAM DESCRIPTION, OR SUCH OTHER DOCUMENTS OR INFORMATION
AS ARE NECESSARY.
(E) STATE RCRA PROGRAMS ONLY. ALL NEW PROGRAMS MUST COMPLY WITH
THESE REGULATIONS IMMEDIATELY UPON APPROVAL. ANY APPROVED PROGRAM WHICH
REQUIRES REVISION BECAUSE OF A MODIFICATION TO THIS PART OR TO 40 CFR
PARTS 122, 124, 2L0, 261, 2L2, 263, 264, 265 OR 266 SALL BE SO REVISED
WITHIN ONE YEAR OF THE DATE OF PROMULGATION OF SUCH REGULATION, UNLESS A
STATE MUST AMEND OR ENACT A STATUTE IN ORDER TO MAKE TE REQUIRED
REVISION IN WHICH CASE SUCH REVISION SHALL TAKE PLACE WITHIN TWO YEARS.
(F) STATE UIC PROGRAMS ONLY. THE STATE SHALL SUBMIT THE INFORMATION
REQUIRED UNDER PARAGRAPH (B)(1) OF THIS SECTION WITHIN 270 DAYS OF ANY
AMENDMENT TO THIS PART OR 40 CFR PARTS 122, 124, OR 146 WHICH REVISES OR
ADDS ANY REQUIREMENT RESPECTING AN APPROVED STATE UIC PROGRAM.
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FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 175 OF 225
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EPA
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REGULATIONS
(G) STATE NPDES PROGRAMS ONLY. ALL NEW PROGRAMS MUST COMPLY WITH
THESE REGULATIONS IMMEDIATELY UPON APPROVAL. ANY APPROVED STATE SECTION
402 PERMIT PROGRAM WHICH REQUIRES REVISION TO CONFORM TO THIS PART SHALL
BE SO REVISED WITHIN ONE YEAR OF THE DATE OF PROMULGATION OF THESE
REGULATIONS, UNLESS A STATE MUST AMEND OR ENACT A STATUTE IN ORDER TO
MAKE THE REQUIRED REVISION IN WHICH CASE SUCH REVISION SHALL TAKE PLACE
WITHIN 2 YEARS, EXCEPT THAT REVISION OF STATE PROGRAMS TO IMPLEMENT THE
REQUIREMENTS OF 40 CFR PART 403 (PRETREATMENT) SHALL BE ACCOMPLISHED AS
PROVIDED IN 40 CFR SECTION 403.10. IN ADDITION, APPROVED STATES SHALL
SUBMIT, WITHIN 6 MONTHS, COPIES OF THEIR PERMIT FORMS FOR EPA REVIEW AND
APPROVAL. APPROVED STATES SHALL ALSO ASSURE THAT PERMIT APPLICANTS,
OTHER THAN POTWS, EITHER (1) WHOSE PERMITS EXPIRE AFTER NOVEMBER 30,
1980 OR (2) WOSE PERMITS EXPIRE BEFORE NOVEMBER 30, 1980 AND WHO HAVE
NOT REAPPLIED FOR A PERMIT PRIOR TO APRIL 30, 1980, SUBMIT, AS PART OF
THEIR APPLICATION, THE INFORMATION REQUIRED UNDER SECTIONS 122.4(D) AND
122.53 (D) OR (3), AS APPROPRIATE.
(H) STATE SECTION 404 PROGRAMS ONLY. THE REGIONAL ADMINISTRATOR
SHALL CONSULT WITH THE CORPS OF ENGINEERS, THE U.S. FISH AND WILDLIFE
SERVICE, AND THE NATIONAL MARINE FISHERIES SERVICE REGARDING AND
SUBSTANTIAL PROGRAM REVISIO, AND SHALL CONSIDER THEIR RECOMMENDATIONS
PRIOR TO APPROVAL OF ANY SUCH REVISION.
(A) THE ADMINISTRATOR MAY WITHDRAW PROGRAM APPROVAL WHEN A STATE
PROGRAM NO LONGER COMPLIES WITH THE REQUIREMENTS OF THIS PART, AND THE
STATE FAILS TO TAKE COORRECTIVE ACTION, SUCH CIRCUMSTANCES INCLUDE THE
FOLLOWING:
(1) WHEN THE STATE'S LEGAL AUTHORITY NO LONGER MEETS THE REQUIREMENTS
OF THIS PART, INCLUDING:
(I) FAILURE OF THE STATE TO PROMULGATE OR ENACT NEW AUTHORITIES EHEN
NECESSARY; OR
(II) ACTION BY A STATE LEGISLATURE OR COURT STRIKING DOWN OR LIMITING
STATE AUTHORITIES.
(2) WHEN THE OPERATION OF THE STATE PROGRAM FAILS TO COMPLY WITH THE
REQUIREMENTS OF THIS PART, INCLUDING:
(I) FAILURE TO EXERCISE CONTROL OVER ACTIVITIES REQUIRED TO BE
REGULATED UNDER THIS PART, INCLUDING FAILURE TO ISSUE PERMITS;
(II) REPEATED ISSUANCE OF PERMITS WHICH DO NOT CONFORM TO THE
REQUIREMENTS OF THIS PART; OR
(III) FAILURE TO COMPLY WITH THE PUBLIC PARTICIPATIN REQUIREMENTS OF
THIS PART.
(3) WHEN THE STATE'S ENFORCEMENT PROGRAM FAILS TO COMPLY WITH THE
REQUIREMENTS OF THIS PART, INCLUDING:
(I) FAILURE TO ACT ON VIOLATIONS OF PERMITS OR OTHER PROGRAM
REQUIREMENTS;
(II) FAILURE TO SEEK ADEQUATE ENFORCEMENT PENALTIES OR TO COLLECT
ADMINISTRATIVE FINES WHEN IMPOSED; OR
(III) FAILURE TO INSPECT AND MONITOR ACTIVITIES SUBJECT TO
REGULATION.
(4) WHEN THE STATE PROGRAM FAILS TO COMPLY WITH THE TERMS OF THE
MEMORANDUM OF AGREEMENT REQUIRED UNDER SECTION 123.6.
(A) A STATE WITH A PROGRAM APPROVED UNDER THIS PART MAY VOLUNTARILY
TRANSFER PROGRAM RESPONSIBILITIES REQUIRED BY FEDERAL LAW TO EPA (OR TO
THE SECRETARY IN THE CASE OF 404 PROGRAMS) BY TAKING THE FOLLOWING
ACTIONS, OR IN SUCH OTHER MANNER AS MAY BE AGREED UPON WITH THE
ADMINISTRATOR.
(1) THE STATE SHALL GIVE THE ADMINISTRATOR (AND THE SECRETARY IN THE
CASE OF SECTION 404 PROGRAMS) 180 DAYS NOTICE OF THE PROPOSED TRANSFER
AND SHALL SUBMIT A PLAN FOR THE ORDERLY TRANSFER OF ALL RELEVANT PROGRAM
INFORMATION NOT IN THE POSSESSION OF EPA (OR THE SECRETARY IN THE CASE
OF SECTION 404 PROGRAMS) 180 DAYS NOTICE OF THE PROPOSED TRANSFER AND
SHALL SUBMIT A PLAN FOR THE ORDERLY TRANSFER OF ALL RELEVANT PROGRAM
INFORMATION NOT IN THE POSSESSION OF EPA (OR THE SECRETARY IN THE CASE
OF SECTION 404 PROGRAMS) (SUCH AS PERMITS, PERMIT FILES, COMPLIANCE
FILES, REPORTS, PERMIT APPLICATIOS) WHICH ARE NECESSARY FOR EPA (OR THE
SECRETARY IN THE CASE OF SECTION 404 PROGRAMS) TO ADMINISTER THE
PROGRAM.
(2) WITHIN 60 DAYS OF RECEIVING THE NOTICE AND TRANSFER PLAN, THE
ADMINISTRATOR (AND THE SECRETARY IN THE CASE OF SECTION 404 PROGRAMS)
SHALL EVALUATE THE STATE'S TRANSFER PLAN AND SHALL IDENTIFY AND
ADDITIONAL INFORMATION NEEDED BY THE FEDERAL GOVERNMENT FOR THE PROGRAM
ADMINISTRATION AND/OR IDENTIFY ANY OTHER DEFICIENCIES IN THE PLAN.
(3) AT LEAST 30 DAYS BEFORE THE TRANSFER IN TO OCCURE THE ADMINISTRA
SALL PUBLISH NOTICE OF THE TRANSFER IN THE FEDERAL REGISTER AND IN
ENOUGH OF THE LARGEST NEWSPAPERS IN THE STATE TO PROVIDE STATEWIDE
COVERAGE, AND SHALL MAIL NOTICE TO ALL PERMIT HOLDERS, PERMIT
APPLICANTS, OTHER REGULATED PERSONS AND OTHER INTERESTED PERSONS ON
APPROPRIATE EPA AND STATE MAILING LISTS.
(B) THE FOLLOWING PROCEDURES APPLY WHEN THE ADMINISTRATOR ORDERS THE
COMMENCEMENT OF PROCEEDINGS TO DETERMINE WHETHER TO WITHDRAW APPROVAL OF
A STATE PROGRAM, OTHER THAN A UIC PROGRAM. THE PROCESS FOR WITHDRAWING
APPROVAL OF STATE UIC PROGRAMS IS SET OUT IN SECTION 123.55.
(1) ORDER. THE ADMINISTRATOR MAY ORDER THE COMMENCEMENT OF
WITHDRAWAL PROCEEDINGS ON HIS OR HER OWN INITIATIVE OR IN RESPONSE TO A
PETITION FROM AN INTERESTED PERSON ALLEGING FAILURE OF THE STATE TO
COMPLY WITH THE REQUIREMENTS OF THIS PART AS SET FORTH IN SECTION
123.14. THE ADMINISTRATOR SHALL RESPOND IN WRITING TO ANY EPTITION TO
COMMENCE WITHDRAWAL PROCEEDINGS. HE MAY CONDUCT AN INFORMAL
INVESTIGATION OF THE ALLEGATIONS IN THE PETITION TO DETERMINE WHETHER
CAUSE EXISTS TO COMMENCE PROCEEDINGS UNDER THIS PARAGRAPH. THE
ADMINISTRATOR'S ORDER COMMENCING PROCEEDINGS UNDER THIS PARGRAPH SHALL
FIX A TIME AND PLACE FOR THE COMMENCEMENT OF THE HEARING AND SHALL
SPECIFY THE ALLEGATIONS AGAINST THE STATE WHICH ARE TO BE CONSIDERED AT
THE HEARING. WITHIN 30 DAYS THE STATE SHALL ADMIT OR DENY THESE
ALLEGATIONS IN A WRITTEN ANSWER. THE PARTY SEEKING WITHDRAWAL OF THE
STATE'S PROGRAM SHALL HAVE THE BURDEN OF COMING FORWARD WITH THE
EVIDENCE IN A HEARING UNDER THIS PARAGRAPH.
(2) DEFINITIONS. FOR PURPOSES OF THIS PARAGRAPH TE DEFINITIONS OF
"ACT," "ADMINISTRATIVE LAW JUDGE," "HEARING," "HEARING CLERK," AND
"PRESIDING OFFICER" IN 40 CFR SECTION 22.03 APPLY IN ADDITION TO THE
FOLLOWING:
(I) "PARTY" MEANS THE PETITIONER, THE STATE, THE AGENCY, AND ANY
OTHER PERSON WHOSE REQUEST TO PARTICIPATE AS A PARTY IS GRANTED.
(II) "PERSON" MEANS THE AGENCY, THE STATE AND ANY INDIVIDUAL OR
ORGANIZATION HAVING AN INTEREST IN THE SUBJECT MATTER OF THE PROCEEDING.
(III) "PETITIONER" MEANS ANY PERSON WHOSE PETITION FOR COMMENCEMENT
OF WITHDRAWAL PROCEEDINGS HAS BEEN GRANTED BY THE ADMINISTRATOR.
(3) PROCEDURES. THE FOLLOWING PROVISIONS OF 40 CFR PART 22
(CONSOLIDATED RULES OF PRACTICE) ARE APPLICABLE TO PROCEEDINGS UNDER
THIS PARAGRAPH:
(I) SECTION 22.02-(USE OF NUMBER/GENDER);
(II) SECTION 22.04(C)-(AUTHORITIES OF PRESIDING OFFICER);
(III) SECTION 22.06-FILING/SERVICE OF RULINGS AND ORDERS);
(IV) SECTION 22.07(A) AND(B)-EXCEPT THAT, THE TIME FOR COMMENCEMENT
OF THE HEARING SHALL NOT BE EXTENDED BEYOND THE DATE SET IN THE
ADMINISTRATOR'S ORDER WITHOUT APPROVAL OF THE
ADMINISTRATOR-(COMPUTATION/EXTENSION OF TIME);
(V) SECTION 22.08-HOWEVER, SUBSTITUTE "ORDER COMMENCING PROCEEDINGS"
FOR "COMPLAINT"-(EX PARTE CONTACTS);
(VI) SECTION 22.09-(EXAMINATION OF FILED DOCUMENTS);
(VII) SECTION 22.11(A), (C) AND (D), HOWEVER, MOTIONS TO INTERVENE
MUST BE FILED WITHIN 15 DAYS FROM THE DATE THE NOTICE OF THE
ADMINISTRATOR'S ORDER IS FIRST PUBLISHED-(INTERVENTION).
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 176 OF 225
COSTLE DM ADMINISTRATOR
EPA
113675
REGULATIONS
(VIII) SECTION 22.16 EXCEPT THAT, SERVICE SHALL BE IN ACCORDANCE WITH
PARAGRAPH (B)(4) OF THIS SECTION, THE FIRST SENTENCE IN SECTION 22.16(C)
SHALL BE DELETED, AND THE WORD "RECOMMENDED" SHALL BE SUBSTITUTED FOR
THE WORD "INITIAL" IN SECTION 22.16(C)-(MOTIONS);
(IX) SECTION 22.19(A), (B) AND (C)-(PREHEARING CONFERENCE);
(X) SECTION 22.22-(EVIDENCE);
(XI) SECTION 22.23-(OBJECTIONS/OFFERS OF PROOF);
(XII) SECTION 22.25-(FILING THE TRANSCRIPT); AND
(XIII) SECTION 22.26-(FINDINGS/CONCLUSIONS).
(4) RECORD OF PROCEEDINGS. (I) THE HEARING SHALL BE EITHER
STENOGRAPHICALLY REPORTED VERBATIM OR TAPE RECORDED, AND THEREUPON
TRANSCRIBED BY AN OFFICIAL REPORTER DESIGNATED BY THE PRESIDING OFFICER;
(II) ALL ORDER ISSUED BY THE PRESIDING OFFICER, TRANSCRIPTS OF
TESTIMONY, WRITTEN STATEMENTS OF POSITION, STIPULATIONS, EXHIBITS,
MOTIONS, BRIEFS, AND OTHER WRITTEN MATERIAL OF ANY KIND SUBMITTED IN THE
HEARING SHALL BE A PART OF THE RECORD AND SHALL BE AVAILABLE FOR
INSPECTION OR COPYING IN THE OFFICE OF THE HEARING CLERK, UPON PAYMENT
OF COSTS, INQUIRIES MAY BE MADE AT THE OFFICE OF THE ADMINISTRATIVE LAW
JUDGES, HEARING CLERK, 401 M STREET, S.W., WASHINGTON, D.C. 20460;
(III) UPON NOTICE TO ALL PARTIES THE PRESIDING OFFICER MAY AUTHORIZE
COORRECTIONS TO THE TRANSCRIPT WHICH INVOLVE MATTERS OF SUBSTANCE;
(IV) AN ORIGINAL AND TWO (2) COPIES OF ALL WRITTEN SUBMISSIONS TO TE
HEARING SALL BE FILED WITH THE HEARING CLERK;
(V) A COPY OF EACH SUCH SUBMISSION SHALL BE SERVED BY THE PERSON
MAKING THE SUBMISSION UPON THE PRESIDING OFFICERAND EACH PARTY OF
RECORD. SERVICE UNDER THIS PARAGRAPH SHALL TAKE PLACE BY MAIL OR
PERSONAL DELIVERY;
(VI) EVERY SUBMISSION SHALL BE ACCOMPANIED BY AN ACKNOWLEDGEMENT OF
SERVICE BY THE PERSON SERVED OR PROOF OF SERVICE IN THE FORM OF A
STATEMENT OF THE DATE, TIME, AND MANNER OF SERVICE AND THE NAMES OF THE
PERSONS SERVED, CERTIFIED BY THE PERSON WHO MADE SERVICE; AND
(VII) THE HEARING CLERK SHALL MAINTAIN AND FURNISH TO ANY PERSON UPON
REQUEST, A LIST CONTAINING THE NAME, SERVICE ADDRESS, AND TELEPHONE
NUMBER OF ALL PARTIES AND THEIR ATTORNEYS OR DULY AUTHORIZED
REPRESENTATIVES.
(5) PARTICIPATION BY A PERSON NOT A PARTY. A PERSON WHO IS NOT A
PARTY MAY, AT THE DISCRETION OF THE PRESIDING OFFICER, BE PERMITTED TO
MAKE A LIMITED APPEARANCE BY MAKING AN ORAL OR WRITTEN STATEMENT OF
HIS/HER POSITION ON THE ISSUES WITHIN SUCH LIMITS AND ON SUCH CONDITIONS
AS MAY BE FIXED BY THE PRESIDING OFFICER, BUT HE/SHE MAY NOT OTHERWISE
PARTICIPATE IN THE PROCEEDING.
(6)RIGHTS OF PARTIES. ALL PARTIES TO THE PROCEEDING MAY:
(I) APPEAR BY COUNSEL OR OTHER REPRESENTATION IN HEARING AND
PREHEARING PROCEEDINGS;
(II) AGREE TO STIMPULATIONS OF FACTS WHICH SHALL BE MADE A PART OF
THE RECORD.
(7) RECOMMENDED DECISION. (I) WITHIN 30 DAYS AFTER THE FILING OF
PROPOSED FINDINGS AND CONCLUSIONS, AND REPLY BRIEFS, THE PRESIDING
OFFICER SHALL EVALUATE THE RECORD BEFORE HIM/HER, THE PROPOSED FINDINGS
AND CONCLUSIONS AND ANY BRIEFS FILED 0Y TE PARTIES AND SHALL PREPARE A
RECOMMENDED DECISION, AND SHALL CERTIFY THE ENTIRE RECORD, INCLUDING THE
RECOMMENDED DECISION, TO THE ADMINISTRATOR.
(II) COPIES OF THE RECOMMENDED DECISION SHALL BE SERVED UPON ALL
PARTIES.
(III) WITHIN 20 DAYS AFTER THE CERTIFICATION AND FILING OF THE RECORD
AND RECOMMENDED DECISION, ALL PARTIES MAY FILE WITH THE ADMINISTRATOR
EXCEPTIONS TO THE RECOMMENDED DECISION AND A SUPPORTING BRIEF.
(8) DECISION BY ADMINISTRATOR. (I) WITHIN 60 DAYS AFTER THE
CERTIFICATION OF THE RECORD AND FILING OF THE PRESIDING OFFICER'S
RECOMMENDED DECISION, THE ADMINISTRATOR SHALL REVIEU THE RECORD 8EFORE
HIM AND ISSUE HIS OWN DECISION.
(II) IN THE ADMINISTRATOR CONCLUDES THAT THE STATE HAS ADMINISTERED
THE PROGRAM IN CONFORMITY WITH THE APPROPRIATE ACT AND REGULATIONS HIS
DECISION SHALL CONSTITUTE "FINAL AGENCY ACTION" WITHIN THE MEANING OF 5
U.S.C. SECTION 704.
(III) IF THE ADMINISTRATOR CONCLUDES THAT THE STATE HAS NOT
ADMINISTERED THE PROGRAM IN CONFORMITY WITH THE APPROPRIATE ACT AND
REGULATIONS HE SHALL LIST THE DEFICIENCIES IN THE PROGRAM AND PROVIDE
THE STATE A REASONABLE TIME, NOT TO EXCEED 90 DAYS, TO TAKE SUCH
APPROPRIATE CORRECTIVE ACTION AS THE ADMINISTRATOR DETERMINES NECESSARY.
(IV) WITHIN THE TIME PRESCRIBED BY THE ADMINISTRATOR THE STATE SHALL
TAKE SUCH APPROPRIATE CORRECTIVE ACTION AS REQUIRED BY THE ADMINISTRATOR
AND SHALL FILE WITH THE ADMINISTRATOR AND ALL PARTIES A STATEMENT
CERTIFIED BY THE STATE DIRECTOR THAT APPROPRIATE CORRECTIVE ACTION HAS
BEEN TAKEN.
(V) THE ADMINISTRATOR MAY REQUIRE A FURTHER SHOWING IN ADDITION TO
THE CERTIFIED STATEMENT THAT CORRECTIVE ACTION HAS BEEN TAKEN.
(VI) IF THE STATE FAILS TO TAKE APPROPRIATE CORRECTIVE ACTION AND
FILE A CERTIFIED STATEMENT THEREOF WITHIN THE TIME PRESCRIBED BY THE
ADMINISTRATOR, THE ADMINISTRATOR SHALL ISSUE A SUPPLEMENTARY ORDER
WITHDRAWING APPROVAL OF THE STATE PROGRAM. IF THE STATE TAKES
APPROPRIATE CORRECTIVE ACTION, THE ADMINISTRATOR SHALL ISSUE A
SUPPLEMENTARY ORDER STATING THAT APPROVAL OF AUTHRITY IS NOT WITHDRAWN.
(VII) THE ADMINISTRATOR'S SUPPLEMENTARY ORDER SHALL CONSTITUTE FINAL
AGENCY ACTION WITHIN THE MEANING OF 5 U.S.C. SECTION 7U4.
(C) WITHDRAWAL OF AUTHORIZATION UNDER THIS SECTION AND THE
APPROPRIATE ACT DOES NOT RELIEVE ANY PERSON FROM COMPLYING WITH THE
REQUIREMENTS OF STATE LAW, NOR DOES IT AFFECT THE VALIDITY OF ACTIONS BY
THE STATE PRIOR TO WITHDRAWAL.
(A) THIS SUBPART SPECIFIES ADDITIONAL REQUIREMENTS A STATE PROGRAM
MUST MEET IN ORDER TO OBTAIN FINAL AUTNORIZATION UNDER SECTION 3006(B)
OF RCRA. ALL OF THE REQUIREMENTS A STATE PROGRAM MUST MEET IN ORDER TO
OBTAIN INTERIM AUTHORIZATION UNDER SECTION 3006(C) OF RCRA ARE SPECIFIED
IN SUBPART F.
(B) STATES APPROVED UNDER THIS SUBPART ARE AUTHORIZED TO ADMINISTER
AND ENFORCE THEIR HAZARDOUS WASTE PROGRAM IN LIEU OF THE FEDERAL
PROGRAM.
(C) STATES MAY APPLY FOR FINAL AUTHORIZATION AT ANY TIME AFTER THE
INITIAL PROMULGATION OF PHASE II. STATEPROGRAMS UNDER FINAL
AUTHORIZATION MAY NOT TAKE EFFECT UNTIL THE EFFECTIVE DATE OF PHASE II.
(D) STATES OPERATING UNDER INTERIM AUTHORIZATION MAY APPLY FOR AND
RECEIVE FINAL AUTHORIZATION AS SPECIFIED IN PARAGRAPH (C) OF THIS
SECTION NOTWITHSTANDING APPROVAL UNDER SUBPART F, SUCH STATES MUST MEET
ALL THE REQUIREMENTS OF SUBPART A AND THIS SUPART IN ORDER TO QUALIFY
FOR FINAL AUTHORIZATION.
(E) STATES NEED NOT HAVE BEEN APPROVED UNDER SUBPART F IN ORDER TO
QUALIFY FOR FINAL AUTHORIZATION.
TO OBTAIN APPROVAL, A STATE PROGRAM MUST BE CONSISTENT WITH TH
EFEDERAL PROGRAM AND STATE PROGRAMS APPLICABLE IN OTHER STATES AND IN
PARTICULAR MUST COMPLY WITH THE PROVISIONS BELOW. FOR PURPOSES OF THIS
SECTION THE PHRASE "STATE PROGRAMS APPLICABLE IN OTHER STATES" REFERS
ONLY TO THOSE STATE HAZARDOUS WASTE PROGRAMS WHICH HAVE RECEIVED FINAL
AUTHORIZATION UNDER THIS PART.
(A) ANY ASPECT OF THE STATE PROGRAM WHICH UNREASONA0LY RESTICTS,
IMPEDES, OR OPERATES AS A BAN ON THE FREE MOVEMENT ACROSS THE
STATE BORDER OF HAZARDOUS WASTE FROM OR TO OTHER STATES FOR
TREATMENT, STORAGE, OR DISPOSAL AT FACILITIES AUTHORIZED TO
OPERATE UNDER THE FEDERAL OR AN APPROVED STATE PROGRAM SHALL BE
DEEMED INCONSISTENT.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 177 OF 225
COSTLE DM ADMINISTRATOR
EPA
113676
REGULATIONS
(B) ANY ASPECT OF STATE LAW OR OF THE STATE PROGRAM WHICH HAS NO
BASIS IN HUMAN HEALTH OR ENVIRONMENTAL PROTECTION AND WHICH ACTS AS A
PROHIBITION ON THE TREATMENT, STORAGE OR DISPOSAL OF HAZARDOUS WASTE IN
THE STATE MAY BE DEEMED INCONSISTENT.
(C) IF THE STATE MANIFEST SYSTEM DOES NOT MEET THE REQUIREMENTS OF
THIS PART, THE STATE PROGRAM SHALL BE DEEMED INCONSISTENT.
OF HAZARDOUS WASTES.
THE STATE PROGRAM MUST CONTROL ALL THE HAZARDOUS WASTES CONTROLLED
UNDER 40 CFR PART 261 AND MUST ADOPT A LIST OF HAZARDOUS WASTES AND SET
OF CHARACTERISTICS FOR IDENTIFYING HAZARDOUS WASTES EQUIVALENT TO THOSE
UNDER 40 CFR PART 261
(A) THE STATE PROGRAM MUST COVER ALL GENERATORS COVERED BY CFR PART
262. STATES MUST REQUIRE NEW GENERATORS TO CONTACT THE STATE AND OBTAIN
AN EPA IDENTIFICATION NUMBER BEFORE THEY PERFORM ANY ACTIVITY SUBJECT TO
REGULATION UNDER THE APPROVED STATE HAZARDOUS WASTE PROGRAM.
(B) THE STATE SHALL HAVE AUTHORITY TO REQUIRE AND SHALL REQUIE ALL
GENERATORS TO COMPLY WITH REPORTING AND RECORDKEEPING REQUIREMENTS
EQUIVALENT TO THOSE UNDER 40 CFR SECTIONS 262.40 AND 2L2.41. STATES MUST
REQUIRE THAT GENERATORS KEEP THESE RECORDS AT LEAST 3 YEARS.
(C) THE STATE PROGRAM MUST REQUIRE THAT GENERATORS WHO ACCUMULATE
HAZARDOUS WASTES FOR SHORT PERIODS OF TIME PRIOR TO SHIPMENT OFF SITE DO
SO IN CONTAINERS MEETING DOT SHIPPING REQUIREMENTS UNDER 49 CFR PARTS
174, 178 AND 179 OR ACCUMULATE SUCH WASTES IN TANKS IN ACCORDANCE WITH
STATE STORAGE STANDARDS AUTHORIZED BY EPA UNDER THE APPROVED STATE
PROGRAM.
(D) THE STATE PROGRAM MUST REQUIRE THAT GENERATORS COMPLY WITH
REQUIREMENTS THAT ARE EQUIVALENT TO THE REQUIREMENTS FOR THE PACKAGING,
LABELING, MARKING, AND PLACARDING OF HAZARDOUS WASTE UNDER 40 CFR
SECTIONS 262.30 TO 262.33, AND ARE CONSISTENT WITH RELEVANT DOT
REGULATIONS UNDER 49 CFR PARTS 172, 173, AND 178 AND 179.
(E) THE STATE PROGRAM SHALL PROVIDE REQUIREMENTS RESPECTING
INTERNATIONAL SHIPMENTS WHICH ARE EQUIVALENT TO THOS AT 40 CFR SECTION
262.50, EXCEPT THAT ADVANCE NOTIFICATION OF INTERNATIONAL SHIPMENTS, AS
REQUIRED BY 40 CFR SECTION 262.50 (B)(1), SHALL BE FILED WITH THE
ADMINISTRATOR. THE STATE MAY REQUIRE THAT A COPY OF SUCH ADVANCE NOTICE
BE FILED WITH THE STATE DIRECTOR, OR MAY REQUIE EQUIVALENT REPORTING
PROCEDURES.
(NOTE.-SUCH NOTICES SHALL BE MAILED TO HAZARDOUS WASTE EXPORT,
DIVISION FOR OCEANS AND REGULATORY AFFAIRS (A-107), U.S. ENVIRONMENTAL
PROTECTION AGENCY, UASHINGTON, D.C. 20460.)
(F) THE STATE MUST REQUIRE THAT ALL GENERATORS OF HAZARDOUS WASTE WHO
TRANSPORT (OR OFFER FOR TRANSPORT) SUCH HAZARDOUS WASTE OFF-SITE:
(1) USE A MANIFEST SYSTEM THAT ENSURES THAT INTERSTATE AND INTRASTATE
SHIPMENTS OF HAZARDOUS WASTE ARE DESIGNATED FOR DELIVERY, AND, IN THE
CASE OF INTRASTATE SHIPMENTS, ARE DELIVERED TO FACILITIES THAT ARE
AUTHORIZED TO OPERATE UNDER AN APPROVED STATE PROGRAM OR THE FEDERAL
PROGRAM;
(2) INITIATE THE MANIFEST AND DESIGNATE ON THE MANIFEST THE STORAGE,
TREATMENT, OR DISPOSAL FACILITY TO WHICH THE WASTE IS TO BE SHIPPED:
(3) ENSURE THAT ALL WASTES OFFERED FOR TRANSPORT ARE ACCOMPANIED BY
THE MANIFEST, EXCEPT IN THE CASE OF SHIPMENTS BY RAIL OR WATER SPECIFIED
IN 40 CFR SECTIONS 262.23(C) AND 263.20(E). THE STATE PROGRAM SHALL
PROVIDE REQUIREMENTS FOR SHIPMENTS BY RAIL OR WATER EQUIVALENT OT THOSE
UNDER 40 CFR SECTIONS 262.23(C) AND 263.20(E).
(4) INVESTIGATE INSTANCES WHERE MANIFESTS HAVC NOT BEEN RETURNED BY
THE OWNER OR OPERATOR OF THE DESIGNATED FACILITY AND REPORT SUCH
INSTANCES TO THE STATE IN WHICH THE SHIPMENT ORIGNIATED.
(G) IN THE CASE OF INTERSTATE SHIPMENTS FOR WHICH THE MANIFEST
HAS NOT BEEN RETURNED, THE STATE PROGRAM MUST PROVIDE FOR NOTIFICATI
TO THE STATE IN WHICH THE FACILITY DESIGNATED ON THE MANIFEST IS
LOCATED AND TO THE STATE IN WHICH THE SHIPMENT MAY HAVE BEEN
DELIVERED (OR TO EPA IN THE CASE OF UNAUTHORIZED STATES).
(H) THE STATE MUST FOLLOW THE FEDERAL MANIFEST FORM (40 CFR SECTION
262.21) AND MAY SUPPLEMENT THE FORMAT TO A LIMITED EXTENT SUBJECT TO THE
CONSISTENCY REQUIREMENTS OF THE HAZARDOUS MATERIALS TRANSPORTATION ACT
(49 U.S.C. 1801 ET SEQ.).
(A) THE STATE PROGRAM MUST COVER ALL TRANSPORTERS COVERD BY 40 CFR
PART 263. NEW TRANSPORTERS MUST BE REQUIRED TO CONTACT THE STATE AND
OBTAIN AN EPA IDENTIFICATION NUMBER FROM THE STATE BEFORE THEY ACCEPT
HAZARDOUS WASTE FOR TANSPORT.
(B) THE STATE SHALL HAVE THE AUTHORITY TO REQUIRE AND SHALL REQUIRE
ALL TRANSPORTERS TO COMPLY WITH RECORDKEEPING REQUIREMENTS EQUIVALENT TO
THOSE FOUND AT 40 CFR SECTION 263.22. STATES MUST REQUIRE THE RECORDS
BE KEPT AT LEAST 3 YEARS.
(C) THE STATE MUST REQUIRE THE TRANSPORTER TO CARRY THE MANIFEST
DURING TRANSPORT, EXCEPT IN THE CASE OF SHIPMENTS BY RAIL OR WATER
SPECIFIED IN 40 CFR SECTION 263.20(E), AND TO DELIVER WASTES ONLY TO THE
FACILITY DESIGNATED ON THE MANIFEST. THE STATE PROGRAM SHALL PROVIDE
REQUIREMENTS FOR SHIPMENTS BY RAIL OR WATER EQUIVALENT TO THOSE UNDER 40
CFR SECTION2L3.30(E).
(D) FOR HAZARDOUS WASTES THAT ARE DISCHARGED IN TRANSIT, THE STATE
PROGRAM MUST REQUIRE THAT TRANSPORTERS NOTIFY APPROPRIATE
STATE, LOCAL, AND FEDERAL AGENCIES OF SUCH DISCHARGES, AND CLEAN
UP SUCH WASTES, OR TAKE ACTION SO THAT SUCH WASTES DO NOT PRESENT
A HAZARD TO HUMAN HEALTH OR THE ENVIRONMENT. THESE REUIQRMENTS
SHALL BE EQUIVALENT TO THOSE FOUND AT 40 CFR SECTIONS 263.30 AND
263.31.
THE STATE SHALL HAVE STANDARDS FOR HAZARDOUS WASTE MANAGEMENT
FACILITIES WHICH ARE EQUIVALENT TO 40 CFR PARTS 264 AND 266. THESE
STANDARDS SHALL INCLUDE:
(A) TECHNICAL STANDARDS FOR TANKS, CONTAINERS, WASTE PILES,
INCINERATION, CHEMICAL, PHYUSICAL AND BIOLOGICAL TREATMENT FACILITIES;
(B) FINANCIAL RESPONSIBILITY DURING FACILITY OPERATION;
(C) PREPAREDNESS FOR THE PREVENTION OF DISCHARGES OR RELEASES OF
HAZARDOUS WASTE; CONTINGENCY PLANS AND EMERGENCY PROCEDURES TO BE
FOLLOWED IN THE EVENT OF A DISCHARGE OR RELEASE OF HAZARDOUS WASTE;
(D) CLOSURE AND POST-CLOSURE REQUIREMENTS INCLUDING FINANCIAL
REQUIREMENTS TO ENSURE THAT MONEY WILL BE AVAILABLE FOR CLOSURE AND
POST=CLOSURE MONITORING AND MAINTENANCE;
(E) GROUNDWATER MONITORING;
(F) SECURITY TO PREVENT UNAUTHORIZED ACCESS TO THE FACILITY;
(G) FACILITY PERSONNEL TRAINING;
(H) INSPECTIONS, MONITORING, RECORDKEEPING, AND REPORTING;
(I) COMPLIANCE WITH THE MANIFEST SYSTEM, INCLUDING THE REQUIREMENTS
THAT FACILITY OWNERS OR OPERATORS RETURN A SIGNED COPY OF THE MANIFEST
TO THE GENERATOR TO CERTIFY DELIVERY OF THE HAZARDOUS WASTE SHIPMENT;
(J) OTHER REQUIREMENTS TO THE EXTENT THAT THEY ARE INCLUDED IN IN40
CFR PARTS 264 AND 26L.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 178 OF 225
COSTLE DM ADMINISTRATOR
EPA
113677
REGULATIONS
(A) STATE LAW MUST REQUIRE PERMITS FOR OWNERS AND OPERATORS OF ALL
HAZARDOUS WASTE MANGEMENT FACILITIES REQUIRED TO OBTAIN A PERMIT UNDER
40 CFR PART 122 AND PROHIBIT THE OPERATION OF ANY HAZARDOUS WASTE
MANAGEMENT FACILITY WITHOUT SUCH A PERMIT, EXCEPT THAT STATES MAY, IF
ADEQUATE LEGAL AUTHORITY EXISTS, AUTHORIZE OWNERS AND OPERATORS OF ANY
FACILITY WHICH WOULD QUALIFY FOR INTERIM STATUS UNDER THE FEDERAL
PROGRAM TO REMAIN IN OPERATION UNTIL A FINAL DECISION IS MADE ON THE
PERMIT APPLICATION. WHERE STATE LAW AUTHORIZES SUCH CONTINUED OPERATION
IT SHALL REQUIRE COMPLIANCE BY OWNERS AND OPERATORS OF SUCH FACILITIES
WITH STANDARDS AT LEAST AS STRINGEST AS EPA'S INTERIM STATUS STANDARDS
AT 40 CFR PART 265.
(B) THE STATE MUST REQUIRE ALL NEW HWM FACILITIES TO CONTACT THE
STATE AND OBTAIN AN EPA IDENTIFICATION NUMBER BEFORE COMMENCING
TREATMENT, STORAGE, OR DISPOSAL OF HAZARDOUS WASTE.
(C) ALL PERMITS ISSUED BY THE STATE SHALL REQUIRE COMPLIANCE WITH THE
STANDARDS ADOPTED BY THE STATE UNDER SECTION 123.36.
(D) ALL PERMITS ISSUED UNDER STATE LAW PRIOR TO THE DATE OF APPROVAL
OF FINAL AUTHORIZATION SHALL BE REVIEWED BY THE STATE DIRECTOR AND
MODIFIED OR REVOKED AND REISSUED TO REQUIRE COMPLIANCE WITH THRE
REQUIREMENTS OF THIS PART.
(A) THE REGIONAL ADMINISTRATOR MAY COMMENT ON PERMIT APPLICATIONS AND
DRAFT PERMITS AS PROVIDED IN THE MEMORANDUM OF AGREEMENT UNDER SECTION
123.6.
(B) WHERE EPA INDICATES, IN A COMMENT, THAT ISSUANCE OF THE PERMIT
WOULD BE INCONSISTENT WITH THE APPROVED STATE PROGRAM, EPA SHALL INCLUDE
IN THE COMMENT:
(1) A STATEMENT OF THE REASONS FOR THE COMMENT (INCLUDING THE SECTION
OF RCRA OR REGULATIONS PROMULGATED THEREUNDER THAT SUPPORT THE COMMENT);
AND
(2) THE ACTIONS THAT SHOULD BE TAKEN BY THE STATE DIRECTOR IN ORDER
TO ADDRESS THE COMMENTS (INCLUDING THE CONDITIONS WHICH THE PERMIT WOULD
INCLUDE IF IT WERE ISSUED BY THE REGIONAL ADMINISTRATOR).
(C) A COPY OF ANY COMMENT SHALL BE SENT TO THE PERMIT APPLICANT BY
THE REGIONAL ADMINISTRATOR.
(D) THE REGIONAL ADMINISTRATOR SHALL WITHDRAW SUCH A COMMENT WHEN
SATISFIED THAT THE STATE HAS MET OR REFUTED HIS OR HER CONCERNS.
(E) UNDER SECTION 3008(A)(3) OF RCRA, EPA MAY TERMINATE A
STATE-ISSUED PERMIT IN ACCORDANCE WITH THE PROCEDURES OF PART 124,
SUBPART E, OR BRING AN ENFORCEMENT ACTION IN ACCORDANCE WITH THE
PROCEDURES OF 40 CFR PART 22 IN THE CASE OF A VIOLATION OF A STATE
PROGRAM REQUIREMENT. IN EXERCISING THESE AUTHORITIES, EPA WILL OBSERVE
THE FOLLOWING CONDITIONS:
(1) THE REGIONAL ADMINISTRATOR MAY TAKE ACTION UNDER SECTION
3008(A)(3) OF RCRA AGAINST A HOLDER OF A STATE-ISSUED PERMIT AT ANY TIME
ON THE GROUND THAT THE P ERMITTEE IS NOT COMPLYING WITH A CONDITION OF
THAT PERMIT.
(2) THE REGIONAL ADMINISTRATOR MAY TAKE ACTION UNDER SECTION
3008(A)(3) OF RCRA AGAINST A HOLDER OF A STATE-ISSUED PERMIT AT ANY TIME
ON THE GROUNDS THAT THE PERMITTEE IS NOT COMPLYING WITH A CONDITION THAT
THE REGIONAL ADMINISTRATOR IN COMMENTING ON THE PERMIT APPLICATION OR
DRAFT PERMIT STATED WAS NECESSARY TO IMPLEMENT APPROVED STATE PROGRAM
REQUIREMENTS, WHETHER OR NOT THAT CONDITION WAS INCLUDED IN THE FINAL
PERMIT.
(3) THE REGIONAL ADMINISTRATOR MAY NOT TAKE ACTION UNDER SECTION
3008(A)(3) OF RCRA AGAINST A HOLDER OF A STATE-ISSUED PERMIT ON THE
GROUND THAT THE PERMITTEE IS NOT COMPLYING WITH A CONDITION NECESSARY TO
IMPLEMENT APPROVED STATE PROGRAM REQUIREMENTS UNLESS THE REGIONAL
ADMINISTRATOR STATED IN COMMENTING ON THE PERMIT APPLICATION OR DRAFT
PERMIT THAT THAT CONDITION WAS NECESSARY.
(4) THE REGIONAL ADMINISTRATOR MAY TAKE ACTION UNDER SECTION 7003 OF
RCRA AGAINST A PERMIT HOLDER AT ANY TIME WHETHER OR NOT THE PERMIT
HOLDER IS COMPLYING WITH PERMIT CONDITIONS.
(A) PRIOR TO SUBMITTING AN APPLICATION TO EPA FOR APPROVAL OF A STATE
PROGRAM, THE STATE SHALL ISSUE PUBLIC NOTICE OF ITS INTENT TO SEEK
PROGRAM APPROVAL FROM EPA. THIS PUBLIC NOTICE SHALL:
(1) BE CIRCULATED IN A MANNER CALCULATED TO ATTRACT THE
ATTENTION OF INTERESTED PERSONS INCLUDING:
(I) PUBLICATION IN ENOUGH OF THE LARGEST NEWSPAPERS IN THE STATE TO
ATTRACT STATEWIDE ATTENTION; AND
(II) MAILING TO PERSONS ON THE STATE AGENCY MAILING LIST AND TO ANY
OTHER PERSONS WHOM THE AGENCY HAS REASON TO BELIEVE ARE INTERESTED;
(2) INDICATE WHEN AND WHERE THE STATE'S PROPOSED SUBMISSION MAY BE
REVIEWED BY THE PUBLIC;
(3) INDICATE THE COST OF OBTAINING A COPY OF THE SUBMISSION;
(4) PROVIDE FOR A COMMENT PERIOD OF NOT LESS THAN 30 DAYS DURING
WHICH TIME INTERESTED MEMBERS OF THE PUBLIC MAY EXPRESS THEIR VIEWS ON
THE PROPOSED PROGRAM;
(5) PROVIDE THAT A PUBLIC HEARING WILL BE HELD BY THE STATE OR EPA IF
SUFFICIENT PUBLIC INTEREST IS SHOWN OR, ALTERNATIVELY SCHEDULE SUCH A
PUBLIC HEARING. ANY PUBLIC HEARING TO BE HELD BY THE STATE ON ITS
APPLICATION FOR AUTHORIZATION SHALL BE SCHEDULED NO EARLIER THAN 30 DAYS
AFTER THE NOTICE OF HEARING IS PUBLISHED;
(6) BRIEFLY OUTLINE THE FUNDAMENTAL ASPECTS OF THE STATE PROGRAM;
AND
(7) IDENTIFY A PERSON THAT AN INTERESTED MEMBER OF THE PUBLIC MAY
CONTACT WITH ANY QUESTIONS.
(B) IF THE PROPOSED STATE PROGRAM IS SUBSTANTIALLY MODIFIED AFTER THE
PUBLIC COMMENT PERIOD PROVIDED IN PARAGRAPH (A)(4) OF THIS SECTION, THE
STATE SHALL, PRIOR TO SUBMITTING ITS PROGRAM TO THE ADMINISTRATOR,
PROVIDE AN OPPORTUNITY FOR FURTHER PUBLIC COMMENT IN ACCORDANCE WITH THE
PROCEDURE OF PARAGRAPH (A) OF THIS SECTION, PROVIDED THAT THE
OPPORTUNITY FOR FURTHER PUBLIC COMMENT MAY BE LIMITED TO THOSE PORTIONS
OF THE STATE'S APPLICATION WHICH HAVE BEEN CHANGED SINCE THE PRIOR
PUBLIC NOTICE.
(C) AFTER COMPLYING WITH THE REQUIREMENTS OF PARAGRAPHS (A) AND (B)
OF THIS SECTION THE STATE MAY SUBMIT, IN ACCORDANCE WITH SECTION 123.3,
A PROPOSED PROGRAM TO EPA FOR APPROVAL. SUCH FORMAL SUBMISSION MAY ONLY
BE MADE AFTER THE DATE OF PROMULGATION OF PHASE II. THE PROGRAM
SUBMISSION SHALL INCLUDE COPIES OF ALL WRITTEN COMMENTS RECEIVED BY THE
STATE, A TRANSCRIPT, RECORDING, OR SUMMARY OF ANY PUBLIC HEARING WHICH
WAS HELD BY THE STATE, AND A RESPONSIVENESS SUMMARY WHICH IDENTIFIES THE
PUBLIC PARTICIPATION ACTIVITIES CONDUCTED, DESCRIBES THE MATTERS
PRESENTED TO THE PUBLIC, SUMMARIZES SIGNIFICANT COMMENTS RECEIVED AND
RESPONDS TO THESE COMMENTS.
(D) WITHIN 90 DAYS FROM THE DATE OF RECEIPT OF A COMPLETE PROGRAM
SUBMISSION FOR FINAL AUTHORIZATION, THE ADMINISTRATOR SHALL MAKE A
TENTATIVE DETERMINATION AS TO WHETHER OR NOT HE EXPECTS TO GRANT
AUTHORIZATION TO THE STATE PROGRAM. IF THE ADMINISTRATOR INDICATES THAT
HE MAY NOT APPROVE THE STATE PROGRAM HE SHALL INCLUDE A GENERAL
STATEMENT OF HIS AREAS OF CONCERN. THE ADMINISTRATOR SHALL GIVE NOTICE
OF THIS TENTATIVE DETERMINATION IN THE FEDERAL REGISTER AND IN
ACCORDANCE WITH PARAGRAPH (A)(1) OF THIS SECTION. NOTICE OF THE
TENTATIVE DETERMINATION OF AUTHORIZATION SHALL ALSO:
(1) INDICATE THAT A PUBLIC HEARING WILL BE HELD BY EPA NO EARLIER
THAN 30 DAYS AFTER NOTICE OF THE TENTATIVE DETERMINATION OF
AUTHORIZATION. THE NOTICE MAY REQUIRE PERSONS WISHING TO PRESENT
TESTIMONY TO FILE A REQUEST WITH THE REGIONAL ADMINISTRATOR, WHO MAY
CANCEL THE PUBLIC HEARING IF SUFFICIENT PUBLIC INTEREST IN A HEARING IS
NOT EXPRESSED.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 179 OF 225
COSTLE DM ADMINISTRATOR
EPA
113678
REGULATIONS
(2) AFFORD THE PUBLIC 30 DAYS AFTER THE NOTICE TO COMMENT ON THE
STATE'S SUBMISSION AND THE TENTATIVE DETERMINATION; AND
(3) NOTE THE AVAILABILITY OF THE STATE SUBMISSION FOR INSPECTION AND
COPYING BY THE PUBLIC.
(E) WITHIN 90 DAYS OF THE NOTICE GIVEN PURSUANT TO PARAGRAPH (D) OF
THIS SECTION, THE ADMINISTRATOR SHALL MAKE A FINAL DETERMINATION WHETHER
OR NOT TO APPROVE THE STATE'S PROGRAM, TAKING INTO ACCOUNT ANY COMMENTS
SUBMITTED. THE ADMINISTRATOR WILL GRANT FINAL AUTHORIZATION ONLY AFTER
THE EFFECTIVE DATE OF PHASE II. THE ADMINISTRATOR SHALL GIVE NOTICE OF
THIS FINAL DETERMINATION IN THE FEDERAL REGISTER AND IN ACCORDANCE WITH
PARAGRAPH (A)(1) OF THIS SECTION. THE NOTIFICATION SHALL INCLUDE A
CONCISE STATEMENT OF THE REASONS FOR THIS DETERMINATION, AND A RESPONSE
TO SIGNIFICANT COMMENTS RECEIVED.
(A) THIS SUBPART DESCRIBES ADDITIONAL SUBSTANTIVE AND PROCEDURAL
REQUIREMENTS FOR STATE UIC PROGRAMS AUTHORIZED UNDER SECTION 1422 OF
SDWA.
(B) STATES SHALL SUBMIT TO THE ADMINISTRATOR A PROPOSED STATE UIC
PROGRAM COMPLYING WITH SECTION 123.3 OF THIS PART WITHIN 270 DAYS OF THE
DATE OF PROMULGATION OF THESE REGULATIONS. THE ADMINISTRATOR MAY, FOR
GOOD CAUSE, EXTEND THE DATE FOR SUBMISSION OF A PROPOSED STATE UIC
PROGRAM FOR UP TO AN ADDITIONAL 270 DAYS.
(C) EPA WILL ESTABLISH A UIC PROGRAM IN ANY STATE WHICH DOES NOT
COMPLY WITH PARAGRAPH (B) OF THIS SECTION. EPA WILL CONTINUE TO OPERATE
A UIC PROGRAM IN SUCH A STATE UNTIL THE STATE RECEIVES APPROVAL OF A UIC
PROGRAM IN ACCORDANCE WITH THE REQUIREMENTS OF THIS PART.
(NOTE -- STATES WHICH ARE AUTHORIZED TO ADMINISTER THE NPDES PERMIT
PROGRAM UNDER SECTION 402 OF CWA ARE ENCOURAGED TO RELY ON EXISTING
STATUTORY AUTHORITY, TO THE EXTENT POSSIBLE, IN DEVELOPING A STATE UIC
PROGRAM. SECTION 402(B)(1)(D) OF CWA REQUIRES THAT NPDES STATES HAVE
THE AUTHORITY TO ISSUE PERMITS WHICH. . .CONTROL THE DISPOSAL OF
POLLUTANTS INTO WELLS. IN MANY INSTANCES, THEREFORE, NPDES STATES WILL
HAVE EXISTING STATUTORY AUTHORITY TO REGULATE WELL DISPOSAL WHICH
SATISFIES THE REQUIREMENT OF THE UIC PROGRAM. NOTE, HOWEVER, THAT CWA
EXCLUDES CERTAIN TYPES OF WELL INJECTIONS FROM THE DEFINITION OF
"POLLUTANT." IF THE STATE'S STATUTORY AUTHORITY CONTAINS A SIMILAR
EXCLUSION IT MAY NEED TO BE MODIFIED TO QUALIFY FOR UIC PROGRAM
APPROVAL.)
(D) IF A STATE CAN DEMONSTRATE TO EPA'S SATISFACTION THAT THERE ARE
NO UNDERGROUND INJECTIONS WITHIN THE STATE FOR ONE OR MORE CLASSES OF
INJECTION WELLS (OTHER THAN CLASS IV WELLS) SUBJECT TO SDWA AND THAT
SUCH INJECTIONS CANNOT LEGALLY OCCUR IN THE STATE UNTIL THE STATE HAS
DEVELOPED AN APPROVED PROGRAM FOR THOSE CLASSES OF INJECTIONS, THE STATE
NEED NOT SUBMIT A PROGRAM TO REGULATE THOSE INJECTIONS AND A PARTIAL
PROGRAM MAY BE APPROVED. THE DEMONSTRATION OF LEGAL PROHIBITION SHALL
BE MADE BY EITHER EXPLICITLY BANNING NEW INJECTIONS OF THE CLASS NOT
COVERED BY THE STATE PROGRAM OR PROVIDING A CERTIFICATION FROM THE STATE
ATTORNEY GENERAL THAT SUCH NEW INJECTIONS CANNOT LEGALLY OCCUR UNTIL THE
STATE HAS DEVELOPED AN APPROVED PROGRAM FOR THAT CLASS. THE STATE SHALL
SUBMIT A PROGRAM TO REGULATE BOTH THOSE CLASSES OF INJECTIONS FOR WHICH
A DEMONSTRATION IS NOT MADE AND CLASS IV WELLS.
(E) WHEN A STATE UIC PROGRAM IS FULLY APPROVED BY EPA TO REGULATE ALL
CLASSES OF INJECTIONS, THE STATE ASSUMES PRIMARY ENFORCEMENT AUTHORITY
UNDER SECTION 1422(B)(3) OF SDWA. EPA RETAINS PRIMARY ENFORCEMENT
RESPONSIBILITY WHENEVER THE STATE PROGRAM IS DISAPPROVED IN WHOLE OR IN
PART. STATES WHICH HAVE PARTIALLY APPROVED PROGRAMS HAVE AUTHORITY TO
ENFORCE ANY VIOLATION OF THE APPROVED PORTION OF THEIR PROGRAM. EPA
RETAINS AUTHORITY TO ENFORCE VIOLATIONS OF STATE UNDERGROUND INJECTION
CONTROL PROGRAMS, EXCEPT THAT, WHEN A STATE HAS A FULLY APPROVED
PROGRAM, EPA WILL NOT TAKE ENFORCEMENT ACTIONS WITHOUT PROVIDING PRIOR
NOTICE TO THE STATE AND OTHERWISE COMPLYING WITH SECTION 1423 OF SDWA.
STATES MAY AUTHORIZE CERTAIN WELL INJECTIONS BY RULE RATHER THAN BY
PERMIT. ANY AUTHORIZATION BY RULE SHALL COMPLY WITH SECTION 122.37.
STATES SHALL SUBMIT TO THE ADMINISTRATOR 6 MONTHS AFTER THE DATE OF
PROMULGATION OF THESE REGULATIONS A REPORT DESCRIBING THE STATE'S
PROGRESS IN DEVELOPING A UIC PROGRAM. IF THE ADMINISTRATOR EXTENDS THE
TIME FOR SUBMISSION OF A UIC PROGRAM AN ADDITIONAL 270 DAYS, PURSUANT TO
SECTION 123.51(B), THE STATE SHALL SUBMIT A SECOND REPORT SIX MONTHS
AFTER THE FIRST REPORT IS DUE. THE ADMINISTRATOR MAY PRESCRIBE THE
MANNER AND FORM OF THE REPORT.
(A) PRIOR TO SUBMITTING AN APPLICATION TO THE ADMINISTRATOR FOR
APPROVAL OF A STATE UIC PROGRAM, THE STATE SHALL ISSUE PUBLIC NOTICE OF
ITS INTENT TO ADOPT A UIC PROGRAM AND TO SEEK PROGRAM APPROVAL FROM EPA.
THIS PUBLIC NOTICE SHALL:
(1) BE CIRCULATED IN A MANNER CALCULATED TO ATTRACT THE ATTENTION OF
INTERESTED PERSONS. CIRCULATION OF THE PUBLIC NOTICE SHALL INCLUDE
PUBLICATION IN ENOUGH OF THE LARGEST NEWSPAPERS IN THE STATE TO ATTRACT
STATEWIDE ATTENTION AND MAILING TO PERSONS ON APPROPRIATE STATE MAILING
LISTS AND TO ANY OTHER PERSONS WHOM THE AGENCY HAS REASON TO BELIEVE ARE
INTERESTED;
(2) INDICATE WHEN AND WHERE THE STATE'S PROPOSED PROGRAM SUBMISSION
MAY BE REVIEWED BY THE PUBLIC;
(3) INDICATE THE COST OF OBTAINING A COPY OF THE SUBMISSION;
(4) PROVIDE FOR A COMMENT PERIOD OF NOT LESS THAN 30 DAYS DURING
WHICH INTERESTED PERSONS MAY COMMENT ON THE PROPOSED UIC PROGRAM;
(5) SCHEDULE A PUBLIC HEARING ON THE STATE PROGRAM FOR NO LESS THAN
30 DAYS AFTER NOTICE OF THE HEARING IS PUBLISHED;
(6) BRIEFLY OUTLINE THE FUNDAMENTAL ASPECTS OF THE STATE UIC PROGRAM;
AND
(7) IDENTIFY A PERSON THAT AN INTERESTED MEMBER OF THE PUBLIC MAY
CONTACT FOR FURTHER INFORMATION.
(B) AFTER COMPLYING WITH THE REQUIREMENTS OF PARAGRAPH (A) OF THIS
SECTION ANY STATE MAY SUBMIT A PROPOSED UIC PROGRAM UNDER SECTION 1422
OF SDWA AND SECTION 123.3 OF THIS PART TO EPA FOR APPROVAL. SUCH A
SUBMISSION SHALL INCLUDE A SHOWING OF COMPLIANCE WITH PARAGRAPH (A) OF
THIS SECTION, COPIES OF ALL WRITTEN COMMENTS RECEIVED BY THE STATE, A
TRANSCRIPT, RECORDING OR SUMMARY OF ANY PUBLIC HEARING WHICH WAS HELD BY
THE STATE, AND A RESPONSIVENESS SUMMARY WHICH IDENTIFIES THE PUBLIC
PARTICIPATION ACTIVITIES CONDUCTED, DESCRIBES THE MATTERS PRESENTED TO
THE PUBLIC, SUMMARIZES SIGNIFICANT COMMENTS RECEIVED AND RESPONDS TO
THESE COMMENTS. A COPY OF THE RESPONSIVENESS SUMMARY SHALL BE SENT TO
THOSE WHO TESTIFIED AT THE HEARING, AND OTHERS UPON REQUEST.
(C) AFTER DETERMINING THAT A STATE'S SUBMISSION FOR UIC PROGRAM
APPROVAL IS COMPLETE THE ADMINISTRATOR SHALL ISSUE PUBLIC NOTICE OF THE
SUBMISSION IN THE FEDERAL REGISTER AND IN ACCORDANCE WITH PARAGRAPH
(A)(1) OF THIS SECTION. SUCH NOTICE SHALL:
(1) INDICATE THAT A PUBLIC HEARING WILL BE HELD BY EPA NO EARLIER
THAN 30 DAYS AFTER NOTICE OF THE HEARING. THE NOTICE MAY REQUIRE
PERSONS WISHING TO PRESENT TESTIMONY TO FILE A REQUEST WITH THE REGIONAL
ADMINISTRATOR, WHO MAY CANCEL THE PUBLIC HEARING IF SUFFICIENT PUBLIC
INTEREST IN A HEARING IS NOT EXPRESSED.
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FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 180 OF 225
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EPA
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REGULATIONS
(2) AFFORD THE PUBLIC 30 DAYS AFTER THE NOTICE TO COMMENT ON THE
STATE'S SUBMISSION; AND
(3) NOTE THE AVAILABILITY OF THE STATE SUBMISSION FOR INSPECTION AND
COPYING BY THE PUBLIC.
(D) WITHIN 90 DAYS OF THE RECEIPT OF A COMPLETE SUBMISSION (AS
PROVIDED IN SECTION 123.3) OR MATERIAL AMENDMENT THERETO, THE
ADMINISTRATOR SHALL BY RULE EITHER FULLY APPROVE, DISAPPROVE, OR APPROVE
IN PART THE STATE'S UIC PROGRAM TAKING INTO ACCOUNT ANY COMMENTS
SUBMITTED. THE ADMINISTRATOR SHALL GIVEN NOTIVE OF THIS RULE IN THE
FEDERAL REGISTER AND IN ACCORDANCE WITH PARAGRAPH (A)(1) OF THIS
SECTION. IF THE ADMINISTRATOR DETERMINES NOT TO APPROVE THE STATE
PROGRAM OR TO APPROVE IT ONLY IN PART, THE NOTICE SHALL INCLUDE A
CONCISE STATEMENT OF THE REASONS FOR THIS DETERMINATION. A
RESPONSIVENESS SUMMARY SHALL BE PREPARED BY THE REGIONAL OFFICE WHICH
IDENTIFIES THE PUBLIC PARTICIPATION ACTIVITIES CONDUCTED, DESCRIBES THE
MATTERS PRESENTED TO THE PUBLIC, SUMMARIZED SIGNIFICANT COMMENTS
RECEIVED AND EXPLAINS THE AGENCY'S RESPONSE TO THESE COMMENTS. THE
RESPONSIVENESS SUMMARY SHALL BE SENT TO THOSE WHO TESTIFIED AT THE
PUBLIC HEARING, AND TO OTHERS UPON REQUEST.
APPROVAL OF A STATE UIC PROGRAM MAY BE WITHDRAWN AND A FEDERAL
PROGRAM ESTABLISHED IN ITS PLACE WHERE THE ADMINISTRATOR DETERMINES,
AFTER HOLDING A PUBLIC HEARING, THAT THE STATE PROGRAM IS NOT IN
COMPLIANCE WITH THE REQUIREMENTS OF SDWA AND THIS PART.
(A) NOTICE TO STATE OF PUBLIC HEARING. IF THE ADMINISTRATOR HAS
CAUSE TO BELIEVE THAT A STATE IS NOT ADMINISTERING OR ENFORCING ITS
AUTHORIZED PROGRAM IN COMPLIANCE WITH THE REQUIREMENT OF SDWA AND THIS
PART, HE OR SHE SHALL INFORM THE STATE BY REGISTERED MAIL OF THE
SPECIFIC AREAS OF ALLEGED NONCOMPLIANCE. IF THE STATE DEMONSTRATES TO
THE ADMINISTRATOR WITHIN 30 DAYS OF SUCH NOTIFICATION THAT THE STATE
PROGRAM IS IN COMPLIANCE, THE ADMINISTRATOR SHALL TAKE NO FURTHER ACTION
TOWARD WITHDRAWAL AND SHALL SO NOTIFY THE STATE BY REGISTERED MAIL.
(B) PUBLIC HEARING. IF THE STATE HAS NOT DEMONSTRATED ITS COMPLIANCE
TO THE SATISFACTION OF THE ADMINISTRATOR WITHIN 30 DAYS AFTER
NOTIFICATION, THE ADMINISTRATOR SHALL INFORM THE STATE DIRECTOR AND
SCHEDULE A PUBLIC HEARING TO DISCUSS WITHDRAWAL OF THE STATE PROGRAM.
NOTICE OF SUCH PUBLIC HEARING SHALL BE PUBLISHED IN THE FEDERAL REGISTER
AND IN ENOUGH OF THE LARGEST NEWSPAPERS IN THE STATE TO ATTRACT
STATEWIDE ATTENTION, AND MAILED TO PERSONS ON APPROPRIATE STATE AND EPA
MAILING LISTS. THIS HEARING SHALL BE CONVENED NOT LESS THAN 60 DAYS NOR
MORE THAN 75 DAYS FOLLOWING THE PUBLICATION OF THE NOTICE OF THE
HEARING. NOTICE OF THE HEARING SHALL IDENTIFY THE ADMINISTRATOR'S
CONCERNS. ALL INTERESTED PERSONS SHALL BE GIVEN OPPORTUNITY TO MAKE
WRITTEN OR ORAL PRESENTATION ON THE STATE'S PROGRAM AT THE PUBLIC
HEARING.
(C) NOTICE TO STATE OF FINDINGS. WHEREIN THE ADMINISTRATOR FINDS
AFTER THE PUBLIC HEARING THAT THE STATE IS NOT IN COMPLIANCE, HE OR SHE
SHALL NOTIFY THE STATE BY REGISTERED MAIL OF THE SPECIFIC DEFICIENCIES
IN THE STATE PROGRAM AND OF NECESSARY REMEDIAL ACTIONS. WITHIN 90 DAYS
OF RECEIPT OF THE ABOVE LETTER, THE STATE SHALL EITHER CARRY OUT THE
REQUIRED REMEDIAL ACTION OR THE ADMINISTRATOR SHALL WITHDRAW PROGRAM
APPROVAL. IF THE STATE CARRIES OUT THE REMEDIAL ACTION OR, AS A RESULT
OF THE HEARING IS FOUND TO BE IN COMPLIANCE, THE ADMINISTRATOR SHALL SO
NOTIFY THE STATE BY REGISTERED MAIL AND CONCLUDE THE WITHDRAWAL
PROCEEDINGS.
(A) THIS SUBPART DESCRIBES ADDITIONAL REQUIREMENTS FOR STATE NPDES
PROGRAMS UNDER SECTIONS 318, 402 AND 405 OF CWA. A STATE NPDES PROGRAM
WILL NOT BE APPROVED BY THE ADMINISTRATOR UNDER SECTION 402 OF CWA
UNLESS IT HAS AUTHORITY TO CONTROL THE DISCHARGES SPECIFIED IN SECTIONS
318 AND 405(A) OF CWA. PERMIT PROGRAMS UNDER SECTIONS 318 AND 405 WILL
NOT BE APPROVED INDEPENDENT OF A SECTION 402 PERMIT PROGRAM.
(B) THESE REGULATIONS ARE PROMULGATED UNDER THE AUTHORITY OF SECTIONS
304(I) AND 101(E) OF CWA, AND IMPLEMENT THE REQUIREMENTS OF THOSE
SECTIONS.
(C) NO PARTIAL NPDES PROGRAMS WILL BE APPROVED BY EPA. THE STATE
PROGRAM MUST PROHIBIT (EXCEPT AS PROVIDED IN SECTION 122.51(C)(2)) ALL
POINT SOURCE DISCHARGES OF POLLUTANTS, ALL DISCHARGES INTO AQUACULTURE
PROJECTS, AND ALL DISPOSAL OF SEWAGE SLUDGE WHICH RESULTS IN ANY
POLLUTANT FROM SUCH SLUDGE ENTERING INTO ANY WATERS OF THE UNITED STATES
WITHIN THE STATE'S JURISDICTION, EXCEPT AS AUTHORIZED BY A PERMIT IN
EFFECT UNDER THE STATE PROGRAM OR UNDER SECTION 402 OF CWA. NPDES
AUTHORITY MAY BE SHARED BY TWO OR MORE STATE AGENCIES BUT EACH AGENCY
MUST HAVE STATEWIDE JURISDICTION OVER A CLASS OF ACTIVITIES OR
DISCHARGES. WHEN MORE THAN ONE AGENCY IS RESPONSIBLE FOR ISSUING
PERMITS, EACH AGENCY MUST MAKE A SUBMISSION MEETING THE REQUIREMENTS OF
SECTION 123.3 BEFORE EPA WILL BEGIN FORMAL REVIEW.
(D) AFTER PROGRAM APPROVAL EPA SHALL RETAIN JURISDICTION OVER ANY
PERMITS (INCLUDING GENERAL PERMITS) WHICH IT HAS ISSUED UNLESS
ARRANGEMENTS HAVE BEEN MADE WITH THE STATE IN THE MEMORANDUM OF
AGREEMENT FOR THE STATE TO ASSUME RESPONSIBILITY FOR THESE PERMITS.
RETENTION OF JURISDICTION SHALL INCLUDE THE PROCESSING OF ANY PERMIT
APPEALS, MODIFICATION REQUESTS, OR VARIANCE REQUESTS; THE CONDUCT OF
INSPECTIONS, AND THE RECEIPT AND REVIEW OF SELF-MONITORING REPORTS. IF
ANY PERMIT APPEAL, MODIFICATION REQUEST OR VARIANCE REQUEST IS NOT
FINALLY RESOLVED WHEN THE FEDERALLY ISSUED PERMIT EXPIRES, EPA MAY, WITH
THE CONSENT OF THE STATE, RETAIN JURISDICTION UNTIL THE MATTER IS
RESOLVED.
STATE LAW MUST PROVIDE AUTHORITY TO ISSUE PERMITS TO CONTROL THE
DISPOSAL OF POLLUTANTS INTO WELLS. SUCH AUTHORITY SHALL ENABLE
THE STATE TO PROTECT THE PUBLIC HEALTH AND WELFARE AND TO
PREVENT THE POLLUTION OF GROUND AND SURFACE WATERS BY
PROHIBITING WELL DISCHARGES OR BY ISSUING PERMITS FOR SUCH
DISCHARGES WITH APPROPRIATE PERMIT CONDITIONS. A PROGRAM
APPROVED UNDER SECTION 1422 OF SDWA SATISFIES THE REQUIREMENTS
OF THIS SECTION.
(NOTE -- STATES WHICH ARE AUTHORIZED TO ADMINISTER THE NPDES PERMIT
PROGRAM UNDER SECTION 402 OF CWA ARE ENCOURAGED TO RELY ON EXISTING
STATUTORY AUTHORITY, TO THE EXTENT POSSIBLE, IN DEVELOPING A STATE UIC
PROGRAM UNDER SECTION 1422 OF SDWA. SECTION 402(B)(1)(D) OF CWA
REQUIRES THAT NPDES STATES HAVE THE AUTHORITY "TO ISSUE PERMITS WHICH. .
.CONTROL THE DISPOSAL OF POLLUTANTS INTO WELLS." IN MANY INSTANCES,
THEREFORE, NPDES STATES WILL HAVE EXISTING STATUTORY AUTHORITY TO
REGULATE WELL DISPOSAL WHICH SATISFIES THE REQUIREMENTS OF THE UIC
PROGRAM. NOTE, HOWEVER, THAT CWA EXCLUDES CERTAIN TYPES OF WELL
INJECTIONS FROM THE DEFINITION OF "POLLUTANT." IF THE STATE'S STATUTORY
AUTHORITY CONTAINS A SIMILAR EXCLUSION IT MAY NEED TO BE MODIFIED TO
QUALIFY FOR UIC PROGRAM APPROVAL.)
UPON APPROVING A STATE PERMIT PROGRAM, EPA SHALL SEND TO THE STATE
AGENCY ADMINISTERING THE PERMIT PROGRAM ANY RELEVANT INFORMATION WHICH
WAS COLLECTED BY EPA. THE MEMORANDUM OF AGREEMENT UNDER SECTION 123.6
SHALL PROVIDE FOR THE FOLLOWING IN SUCH MANNER AS THE STATE DIRECTOR AND
THE REGIONAL ADMINISTRATOR SHALL AGREE:
(A) PROMPT TRANSMISSION TO THE STATE DIRECTOR FROM THE REGIONAL
ADMINISTRATOR OF COPIES OF ANY PENDING PERMIT APPLICATIONS OR ANY OTHER
RELEVANT INFORMATION COLLECTED BEFORE THE APPROVAL OF THE STATE PERMIT
PROGRAM AND NOT ALREADY IN THE POSSESSION OF THE STATE DIRECTOR.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 181 OF 225
COSTLE DM ADMINISTRATOR
EPA
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REGULATIONS
WHEN EXISTING PERMITS ARE TRANSFERRED TO THE STATE DIRECTOR (E.G., FOR
PURPOSES OF COMPLIANCE MONITORING, ENFORCEMENT OR REISSUANCE), RELEVANT
INFORMATION INCLUDES SUPPORT FILES FOR PERMIT ISSUANCE, COMPLIANCE
REPORTS AND RECORDS OF ENFORCEMENT ACTIONS.
(B) PROCEDURES TO ENSURE THAT THE STATE DIRECTOR WILL NOT ISSUE A
PERMIT ON THE BASIS OF ANY APPLICATION RECEIVED FROM THE REGIONAL
ADMINISTRATOR WHICH THE REGIONAL ADMINISTRATOR IDENTIFIES AS INCOMPLETE
OR OTHERWISE DEFICIENT UNTIL THE STATE DIRECTOR RECEIVES INFORMATION
SUFFICIENT TO CORRECT THE DEFICIENCY.
(A) EACH STATE AGENCY ADMINISTERING A PERMIT PROGRAM SHALL TRANSMIT
TO THE REGIONAL ADMINISTRATOR COPIES OF PERMIT PROGRAM FORMS AND ANY
OTHER RELEVANT INFORMATION TO THE EXTENT AND IN THE MANNER AGREED TO BY
THE STATE DIRECTOR AND THE REGIONAL ADMINISTRATOR IN THE MEMORANDUM OF
AGREEMENT AND NOT INCONSISTENT WITH THIS PART. PROPOSED PERMITS SHALL
BE PREPARED BY STATE AGENCIES UNLESS AGREEMENT TO THE CONTRARY HAS BEEN
REACHED UNDER SECTION 123.75(J). THE MEMORANDUM OF AGREEMENT SHALL
PROVIDE FOR THE FOLLOWING:
(1) PROMPT TRANSMISSION TO THE REGIONAL ADMINISTRATOR OF A COPY OF
ALL COMPLETE PERMIT APPLICATIONS RECEIVED BY THE STATE DIRECTOR, EXCEPT
THOSE FOR WHICH PERMIT REVIEW HAS BEEN WAIVED UNDER SECTION 123.6(E).
THE STATE SHALL SUPPLY EPA WITH COPIES OF PERMIT APPLICATIONS FOR WHICH
PERMIT REVIEW HAS BEEN WAIVED WHENEVER REQUESTED BY EPA;
(2) PROMPT TRANSMISSION TO THE REGIONAL ADMINISTRATOR OF NOTICE OF
EVERY ACTION TAKEN BY THE STATE AGENCY RELATED TO THE CONSIDERATION OF
ANY PERMIT APPLICATION OR GENERAL PERMIT, INCLUDING A COPY OF EACH
PROPOSED OR DRAFT PERMIT AND ANY CONDITIONS, REQUIREMENTS, OR DOCUMENTS
WHICH ARE RELATED TO THE PROPOSED OR DRAFT PERMIT OR WHICH AFFECT THE
AUTHORIZATION OFTHE PROPOSED PERMIT, EXCEPT THOSE FOR WHICH PERMIT
REVIEW HAS BEEN WAIVED UNDER SECTION 123.6(E). THE STATE SHALL SUPPLY
EPA WITH COPIES OF NOTICES FOR WHICH PERMIT REVIEW HAS BEEN WAIVED
WHENEVER REQUESTED BY EPA; AND
(3) TRANSMISSION TO THE REGIONAL ADMINISTRATOR OF A COPY OF EVERY
ISSUED PERMIT FOLLOWING ISSUANCE, ALONG WITH ANY AND ALL CONDITIONS,
REQUIREMENTS, OR DOCUMENTS WHICH ARE RELATED TO OR AFFECT THE
AUTHORIZATION OF THE PERMIT.
(B) THE STATE SHALL TRANSMIT A COPY OF EACH DRAFT GENERAL PERMIT OR
PROPOSED GENERAL PERMIT, EXCEPT THOSE FOR SEPARATE STORM SEWERS, TO THE
EPA DEPUTY ASSISTANT ADMINISTRATOR FOR WATER ENFORCEMENT AT THE SAME
TIME THE DRAFT GENERAL PERMIT OR PROPOSED GENERAL PERMIT IS TRANSMITTED
TO THE REGIONAL ADMINISTRATOR UNDER PARAGRAPH (A)(2) OF THIS SECTION.
(C) THE STATE PROGRAM SHALL PROVIDE FOR TRANSMISSION BY THE STATE
DIRECTOR TO EPA OF:
(1) NOTICES FROM PUBLICLY OWNED TREATMENT WORKS UNDER SECTION
122.61(B) AND 40 CFR APRT 403, UPON REQUEST OF THE REGIONAL
ADMINISTRATOR;
(2) A COPY OF ANY SIGNIFICANT COMMENTS PRESENTED IN WRITING PURSUANT
TO THE PUBLIC NOTICE OF A DRAFT PERMIT AND A SUMMARY OF ANY SIGNIFICANT
COMMENTS PRESENTED AT ANY HEARING ON ANY DRAFT PERMIT, EXCEPT THOSE
COMMENTS REGARDING PERMITS FOR WHICH PERMIT REVIEW HAS BEEN WAIVED UNDER
SECTION 123.6(E) AND FOR WHICH EPA HAS NOT OTHERWISE REQUESTED RECEIPT,
IF:
(I) THE REGIONAL ADMINISTRATOR REQUESTS THIS INFORMATION; OR
(II) THE PROPOSED PERMIT CONTAINS REQUIREMENTS SIGNIFICANTLY
DIFFERENT FROM THOSE CONTAINED IN THE TENTATIVE DETERMINATION AND DRAFT
PERMIT; OR
(III) SIGNIFICANT COMMENTS OBJECTING TO THE TENTATIVE DETERMINATION
AND DRAFT PERMIT HAVE BEEN PRESENTED AT THE HEARING OR IN WRITING
PURSUANT TO THE PUBLIC NOTICE.
(D) ANY STATE PERMIT PROGRAM SHALL KEEP SUCH RECORDS AND SUBMIT TO
THE ADMINISTRATOR SUCH INFORMATION AS THE ADMINISTRATOR MAY REASONABLY
REQUIRE TO ASCERTAIN WHETHER THE STATE PROGRAM COMPLIES WITH THE
REQUIREMENTS OF CWA OR OF THIS PART.
(A)(1) THE MEMORANDUM OF AGREEMENT SHALL PROVIDE A PERIOD OF TIME (UP
TO 90 DAYS FROM RECEIPT OF PROPOSED PERMITS) IN WHICH THE REGIONAL
ADMINISTRATOR MAY TAKE GENERAL COMMENTS UPON, OBJECTIONS TO, OR
RECOMMENDATIONS WITH RESPECT TO PROPOSED PERMITS. EPA RESERVES THE
RIGHT TO TAKE 90 DAYS TO SUPPLY SPECIFIC GROUNDS FOR OBJECTION,
NOTWITHSTANDING ANY SHORTER PERIOD SPECIFIED IN THE MEMORANDUM OF
AGREEMENT, WHEN A GENERAL OBJECTION IS FIELD WITHIN THE REVIEW PERIOD
SPECIFIED IN THE MEMORANDUM OF AGREEMENT. THE REGIONAL ADMINISTRATOR
SHALL SEND A COPY OF ANY COMMENT, OBJECTION OR RECOMMENDATION TO THE
PERMIT APPLICANT.
(2) IN THE CASE OF GENERAL PERMITS, EPA SHALL HAVE 90 DAYS FROM THE
DATE OF RECEIPT OF THE PROPOSED GENERAL PERMIT TO COMMENT UPON, OBJECT
TO OR MAKE RECOMMENDATIONS WITH RESPECT TO THE PROPOSED GENERAL PERMIT,
AND IS NOT BOUND BY ANY SHORTER TIME LIMITS SET BY THE MEMORANDUM OF
AGREEMENT FOR GENERAL COMMENTS, OBJECTIONS OR RECOMMENDATIONS. THE EPA
DEPUTY ASSISTANT ADMINISTRATOR FOR WATER ENFORCEMENT MAY COMMENT UPON,
OBJECT TO, OR MAKE RECOMMENDATIONS WITH RESPECT TO PROPOSED GENERAL
PERMITS, EXCEPT THOSE FOR SEPARATE STORM SEWERS, ON EPA'S BEHALF.
(B)(1) WITHIN THE PERIOD OF TIME PROVIDED UNDER THE MEMORANDUM OF
AGREEMENT FOR MAKING GENERAL COMMENTS UPON, OBJECTIONS TO OR
RECOMMENDATIONS WITH RESPECT TO PROPOSED PERMITS, THE REGIONAL
ADMINISTRATOR SHALL NOTIFY THE STATE DIRECTOR OF ANY OBJECTION TO
ISSUANCE OF A PROPOSED PERMIT (EXCEPT AS PROVIDED IN PARAGRAPH (A)(2) OF
THIS SECTION FOR PROPOSED GENERAL PERMITS). THIS NOTIFICATION SHALL SET
FORTH IN WRITING THE GENERAL NATURE OF THE OBJECTIONS.
(2) WITHIN 90 DAYS FOLLOWING RECEIPT OF A PROPOSED PERMIT TO WHICH HE
OR SHE HAS OBJECTED UNDER PARAGRAPH (B)(1) OF THIS SECTION, OR IN THE
CASE OF GENERAL PERMITS WITHIN 90 DAYS AFTER RECEIPT OF THE PROPOSED
GENERAL PERMIT, THE REGIONAL ADMINISTRATOR, OR IN THE CASE OF GENERAL
PERMITS OTHER THAN FOR SEPARATE STORM SEWERS, THE REGIONAL ADMINISTRATOR
OR THE EPA DEPUTY ASSISTANT ADMINISTRATOR FOR WATER ENFORCEMENT, SHALL
SET FORTH IN WRITING AND TRANSMIT TO THE STATE DIRECTOR:
(I) A STATEMENT OF THE REASONS FOR THE OBJECTION (INCLUDING THE
SECTION OF CWA OR REGULATIONS THEREUNDER THAT SUPPORT THE OBJECTION),
AND
(II) THE ACTIONS THAT MUST BE TAKEN BY THE STATE DIRECTOR TO
ELIMINATE THE OBJECTION (INCLUDING THE EFFLUENT LIMITATIONS AND
CONDITIONS WHICH THE PERMIT WOULD INCLUDE IF IT WERE ISSUED BY THE
REGIONAL ADMINISTRATOR).
(NOTE -- PARAGRAPHS (A) AND (B) OF THIS SECTION, IN EFFECT, MODIFY
AND EXISTING AGREEMENT BETWEEN EPA AND THE STATE WHICH PROVIDES LESS
THAN 90 DAYS FOR EPA TO SUPPLY THE SPECIFIC GROUNDS FOR AN OBJECTION.
HOWEVER, WHEN AN AGREEMENT PROVIDES FOR AN EPA REVIEW PERIOD OF LESS
THAN 90 DAYS, EPA MUST FILE A GENERAL OBJECTION, IN ACCORDANCE WITH
PARAGRAPH (B)(1) OF THIS SECTION, WITHIN THE TIME SPECIFIED IN THE
AGREEMENT. THIS GENERAL OBJECTION MUST BE FOLLOWED BY A SPECIFIC
OBJECTION WITHIN THE 90-DAY PERIOD. THIS MODIFICATION TO MOA'S ALLOWS
EPA TO PROVIDE DETAILED INFORMATION CONCERNING ACCEPTABLE PERMIT
CONDITIONS, AS REQUIRED BY SECTION 402(D) OF CWA. TO AVOID POSSIBLE
CONFUSION, MOA'S SHOULD BE CHANGED TO REFLECT THIS ARRANGEMENT.)
(C) THE REGIONAL ADMINISTRATOR'S OBJECTION TO THE ISSUANCE OF A
PROPOSED PERMIT MUST BE BASED UPON ONE OR MORE OF THE FOLLOWING GROUNDS:
(1) THE PERMIT FAILS TO APPLY, OR TO ENSURE COMPLIANCE WITH, ANY
APPLICABLE REQUIREMENT OF THIS PART.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 182 OF 225
COSTLE DM ADMINISTRATOR
EPA
113681
REGULATIONS
(NOTE -- FOR EXAMPLE, THE REGIONAL ADMINISTRATOR MAY OBJECT TO A
PERMIT NOT REQUIRING THE ACHIEVEMENT OF REQUIRED EFFLUENT LIMITATIONS BY
APPLICABLE STATUTORY DEADLINES.)
(2) IN THE CASE OF A PROPOSED PERMIT FOR WHICH NOTIFICATION TO THE
ADMINISTRATOR IS REQUIRED UNDER SECTION 402(B)(5) OF CWA, THE WRITTEN
RECOMMENDATIONS OF AN AFFECTED STATE HAVE NOT BEEN ACCEPTED BY THE
PERMITTING STATE AND THE REGIONAL ADMINISTRATOR FINDS THE REASONS FOR
REJECTING THE RECOMMENDATIONS ARE INADEQUATE;
(3) THE PROCEDURES FOLLOWED IN CONNECTION WITH FORMULATION OF THE
PROPOSED PERMIT FAILED IN A MATERIAL RESPECT TO COMPLY WITH PROCEDURES
REQUIRED BY CWA OR BY REGULATIONS THEREUNDER OR BY THE MEMORANDUM OF
AGREEMENT;
(4) ANY FINDING MADE BY THE STATE DIRECTOR IN CONNECTION WITH THE
PROPOSED PERMIT MISINTERPRETS CWA OR ANY GUIDELINES OR REGULATIONS UNDER
CWA, OR MISAPPLIES THEM TO THE FACTS;
(5) ANY PROVISIONS OF THE PROPOSED PERMIT RELATING TO THE MAINTENANCE
OF RECORDS, REPORTING, MONITORING, SAMPLING, OR THE PROVISION OF ANY
OTHER INFORMATION BY THE PERMITTEE ARE INADEQUATE, IN THE JUDGMENT OF
THE REGIONAL ADMINISTRATOR, TO ASSURE COMPLIANCE WITH PERMIT CONDITIONS,
INCLUDING EFFLUENT STANDARDS AND LIMITATIONS REQUIRED BY CWA, BY THE
GUIDELINES AND REGULATIONS ISSUED UNDER CWA, OR BY THE PROPOSED PERMIT;
(6) IN THE CASE OF ANY PROPOSED PERMIT WITH RESPECT TO WHICH
APPLICABLE EFFLUENT STANDARDS AND LIMITATIONS UNDER SECTIONS 301, 302,
306, 307, 318, 403 AND 405 OF CWA HAVE NOT YET BEEN PROMULGATED BY THE
AGENCY, THE PROPOSED PERMIT, IN THE JUDGMENT OF THE REGIONAL
ADMINISTRATOR, FAILS TO CARRY OUT THE PROVISIONS OF CWA OR OF ANY
REGULATIONS ISSUED UNDER CWA; THE PROVISIONS OF THIS SUBPARAGRAPH APPLY
TO DETERMINATIONS MADE PURSUANT TO SECTION 125.3(C)(2) IN THE ABSENCE OF
APPLICABLE GUIDELINES AND TO BEST MANAGEMENT PRACTICES UNDER SECTION
304(E) OF CWA, WHICH MUST BE INCORPORATED INTO PERMITS AS REQUIREMENTS
UNDER SECTIONS 301, 306, 307, 318, 403 OR 405, AS THE CASE MAY BE;
(7) ISSUANCE OF THE PROPOSED PERMIT WOULD IN ANY OTHER RESPECT BE
OUTSIDE THE REQUIREMENTS OF CWA, OR REGULATIONS ISSUED UNDER CWA.
(D) PRIOR TO NOTIFYING THE STATE DIRECTOR OF AN OBJECTION BASED UPON
ANY OF THE GROUNDS SET FORTH IN PARAGRAPH (B) OF THIS SECTION, THE
REGIONAL ADMINISTRATOR:
(1) SHALL CONSIDER ALL DATA TRANSMITTED PURSUANT TO SECTION 123.74;
(2) MAY, IF THE INFORMATION PROVIDED IS INADEQUATE TO DETERMINE
WHETHER THE PROPOSED PERMIT MEETS THE GUIDELINES AND REQUIREMENTS OF
CWA, REQUEST THE STATE DIRECTOR TO TRANSMIT TO THE REGIONAL
ADMINISTRATOR THE COMPLETE RECORD OF THE PERMIT PROCEEDINGS BEFORE THE
STATE, OR ANY PORTIONS OF THE RECORD THAT THE REGIONAL ADMINISTRATOR
DETERMINES ARE NECESSARY FOR REVIEW. IF THIS REQUEST IS MADE WITHIN 30
DAYS OF RECEIPT OF THE STATE SUBMITTAL UNDER SECTION 123.74, IT SHALL
CONSTITUTE AN INTERIM OBJECTION TO THE ISSUANCE OF THE PERMIT, AND THE
FULL PERIOD OF TIME SPECIFIED IN THE MEMORANDUM OF AGREEMENT FOR THE
REGIONAL ADMINISTRATOR'S REVIEW SHALL RECOMMENCE WHEN THE REGIONAL
ADMINISTRATOR HAS RECEIVED SUCH RECORD OR PORTIONS OF THE RECORD; AND
(3) MAY, IN HIS OR HER DISCRETION, AND TO THE EXTENT FEASIBLE WITHIN
THE PERIOD OF TIME AVAILABLE UNDER THE MEMORANDUM OF AGREEMENT, AFFORD
TO INTERESTED PERSONS AN OPPORTUNITY TO COMMENT ON THE BASIS FOR THE
OBJECTION;
(E) WITHIN 90 DAYS OF RECEIPT BY THE STATE DIRECTOR OF AN OBJECTION
BY THE REGIONAL ADMINISTRATOR, THE STATE OR INTERSTATE AGENCY OR ANY
INTERESTED PERSON MAY REQUEST THAT A PUBLIC HEARING BE HELD BY THE
REGIONAL ADMINISTRATOR ON THE OBJECTION. A PUBLIC HEARING IN ACCORDANCE
WITH THE PROCEDURES OF SECTIONS 124.12(C) AND (D) SHALL BE HELD, AND
PUBLIC NOTICE PROVIDED IN ACCORDANCE WITH SECTION 124.10, WHENEVER
REQUESTED BY THE STATE OR THE INTERSTATE AGENCY WHICH PROPOSED THE
PERMIT OR IF WARRANTED BY SIGNIFICANT PUBLIC INTEREST BASED ON REQUESTS
RECEIVED.
(F) A PUBLIC HEARING HELD UNDER PARAGRAPH (E) OF THIS SECTION SHALL
BE CONDUCTED BY THE REGIONAL ADMINISTRATOR, AND, AT THE REGIONAL
ADMINISTRATOR'S DISCRETION, WITH THE ASSISTANCE OF AN EPA PANEL
DESIGNATED BY THE REGIONAL ADMINISTRATOR, IN AN ORDERLY AND EXPEDITIOUS
MANNER.
(G) FOLLOWING THE PUBLIC HEARING, THE REGIONAL ADMINISTRATOR SHALL
REAFFIRM THE ORIGINAL OBJECTION, MODIFY THE TERMS OF THE OBJECTION, OR
WITHDRAW THE OBJECTION, AND SHALL NOTIFY THE STATE OF THIS DECISION.
(H)(1) IF NO PUBLIC HEARING IS HELD UNDER PARAGRAPH (E) OF THIS
SECTION AND THE STATE DOES NOT RESUBMIT A PERMIT REVISED TO MEET THE
REGIONAL ADMINISTRATOR'S OBJECTION WITHIN 90 DAYS OF RECEIPT OF THE
OBJECTION, THE REGIONAL ADMINISTRATOR MAY ISSUE THE PERMIT IN ACCORDANCE
WITH PARTS 121, 122, AND 124 OF THIS CHAPTER AND ANY OTHER GUIDELINES
AND REQUIREMENTS OF CWA.
(2) IF A PUBLIC HEARING IS HELD UNDER PARAGRAPH (E) OF THIS SECTION,
THE REGIONAL ADMINISTRATOR DOES NOT WITHDRAW THE OBJECTION, AND THE
STATE DOES NOT RESUBMIT A PERMIT REVISED TO MEET THE REGIONAL
ADMINISTRATOR'S OBJECTION OR MODIFIED OBJECTION WITHIN 30 DAYS OF THE
DATE OF THE REGIONAL ADMINISTRATOR'S NOTIFICATION UNDER PARAGRAPH (G) OF
THIS SECTION, THE REGIONAL ADMINISTRATOR MAY ISSUE THE PERMIT IN
ACCORDANCE WITH PARTS 121, 122, AND 124 OF THIS CHAPTER AND ANY OTHER
GUIDELINES AND REQUIREMENTS OF CWA.
(3) EXCLUSIVE AUTHORITY TO ISSUE THE PERMIT PASSES TO EPA WHEN THE
TIMES SET OUT IN THIS PARAGRAPH EXPIRE.
(I) IN THE CASE OF PROPOSED GENERAL PERMITS FOR DISCHARGES OTHER THAN
FROM SEPARATE STORM SEWERS INSERT "OR THE EPA DEPUTY ASSISTANT
ADMINISTRATOR FOR WATER ENFORCEMENT" AFTER "REGIONAL ADMINISTRATOR"
WHENEVER IT APPEARS IN PARAGRAPHS (C)-(H) OF THIS SECTION.
(J) THE REGIONAL ADMINISTRATOR MAY AGREE, IN THE MEMORANDUM OF
AGREEMENT UNDER SECTION 123.6 TO REVIEW DRAFT PERMITS RATHER THAN
PROPOSED PERMITS. IN SUCH A CASE, A PROPOSED PERMIT NEED NOT BE
PREPARED BY THE STATE AND TRANSMITTED TO THE REGIONAL ADMINISTRATOR FOR
REVIEW IN ACCORDANCE WITH THIS SECTION UNLESS THE STATE PROPOSES TO
ISSUE A PERMIT WHICH DIFFERS FROM THE DRAFT PERMIT REVIEWED BY THE
REGIONAL ADMINISTRATOR, THE REGIONAL ADMINISTRATOR HAS OBJECTED TO THE
DRAFT PERMIT, OR THERE IS SIGNIFICANT PUBLIC COMMENT.
STATE PERMIT PROGRAMS SHALL PROVIDE THAT NO PERMIT SHALL BE ISSUED
WHEN THE REGIONAL ADMINISTRATOR HAS OBJECTED IN WRITING UNDER SECTION
123.75.
(A) AFTER DETERMINING THAT A STATE PROGRAM SUBMISSION IS COMPLETE,
EPA SHALL PUBLISH NOTICE OF THE STATE'S APPLICATION IN THE FEDERAL
REGISTER, AND IN ENOUGH OF THE LARGEST NEWSPAPERS IN THE STATE TO
ATTRACT STATEWIDE ATTENTION, AND SHALL MAIL NOTICE TO PERSONS KNOWN TO
BE INTERESTED IN SUCH MATTERS, INCLUDING ALL PERSONS ON APPROPRIATE
STATE AND EPA MAILING LISTS AND ALL PERMIT HOLDERS AND APPLICANTS WITHIN
THE STATE. THE NOTICE SHALL:
(1) PROVIDE A COMMENT PERIOD OF NOT LESS THAN 45 DAYS DURING WHICH
INTERESTED MEMBERS OF THE PUBLIC MAY EXPRESS THEIR VIEWS ON THE STATE
PROGRAM;
(2) PROVIDE FOR A PUBLIC HEARING WITHIN THE STATE TO BE HELD NO LESS
THAN 30 DAYS AFTER NOTICE IS PUBLISHED IN THE FEDERAL REGISTER;
(3) INDICATE THE COST OF OBTAINING A COPY OF THE STATE'S SUBMISSION.
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(4) INDICATE WHERE AND WHEN THE STATE'S SUBMISSION MAY BE REVIEWED BY
THE PUBLIC;
(5) INDICATE WHOM AN INTERESTED MEMBER OF THE PUBLIC SHOULD CONTACT
WITH ANY QUESTIONS; AND
(6) BRIEFLY OUTLINE THE FUNDAMENTAL ASPECTS OF THE STATE'S PROPOSED
PROGRAM, AND THE PROCESS FOR EPA REVIEW AND DECISION.
WITHIN 90 DAYS OF THE RECEIPT OF A COMPLETE PROGRAM SUBMISSION
UNDER SECTION 123.3 THE ADMINISTRATOR SHALL APPROVE OR DISAPPROVE
THE PROGRAM BASED ON THE REQUIREMENTS OF THIS PART AND OF CWA AND
TAKING INTO CONSIDERATION ALL COMMENTS RECEIVED. A RESPONSIVENESS
SUMMARY SHALL BE PREPARED BY THE REGIONAL OFFICE WHICH IDENTIFIES
THE PUBLIC PARTICIPATION ACTIVITIES CONDUCTED, DESCRIBES THE
MATTERS PRESENTED TO THE PUBLIC, SUMMARIZES SIGNIFICANT COMMENTS
RECEIVED AND EXPLAINS THE AGENCY'S RESPONSE TO THESE COMMENTS.
(C) IF THE ADMINISTRATOR APPROVES THE STATE'S PROGRAM HE OR SHE SHALL
NOTIFY THE STATE AND PUBLISH NOTICE IN THE FEDERAL REGISTER. THE
REGIONAL ADMINISTRATOR SHALL SUSPEND THE ISSUANCE OF PERMITS BY EPA AS
OF THE DATE OF PROGRAM APPROVAL.
(D) IF THE ADMINISTRATOR DISAPPROVES THE STATE PROGRAM HE OR SHE
SHALL NOTIFY THE STATE OF THE REASONS FOR DISAPPROVAL AND OF ANY
REVISIONS OR MODIFICATIONS TO THE STATE PROGRAM WHICH ARE NECESSARY TO
OBTAIN APPROVAL.
(A) THIS SUBPART DESCRIBES ADDITIONAL REQUIREMENTS, BOTH PROCEDURAL
AND SUBSTANTIVE, FOR STATE PERMIT PROGRAMS UNDER SECTION 404 OF CWA
(REGULATING DISCHARGES OF DREDGED OR FILL MATERIAL). BECAUSE EPA DOES
NOT OPERATE THE SECTION 404 PROGRAM, THE PERMIT REQUIREMENTS IN PARTS
122 AND 124 ARE RELEVANT TO SECTION 404 PROGRAMS ONLY TO THE EXTENT THEY
ARE MADE APPLICABLE TO STATE SECTION 404 PROGRAMS IN SECTION 123.7(A).
ADDITIONAL PERMIT APPLICATION AND PROCESSING REQUIREMENTS APPLICABLE TO
STATE 404 PROGRAMS ARE SET OUT IN THIS SUBPART.
(B) THE REQUIREMENTS FOR STATE SECTION 404 PROGRAMS ARE PROMULGATED
UNDER THE AUTHORITY OF SECTIONS 101(E) AND 501(A) OF CWA.
(C) NO PARTIAL SECTION 404 PROGRAMS WILL BE APPROVED BY EPA. EXCEPT
AS PROVIDED IN SECTION 123.92, THE STATE PROGRAM MUST REGULATE ALL
DISCHARGES OF DREDGED OR FILL MATERIAL INTO STATE REGULATED WATERS.
STATE SECTION 404 PROGRAMS ARE LIMITED UNDER SECTION 404(G)(1) OF CWA TO
COVERAGE OF SUCH STATE REGULATED WATERS. SEE THE DEFINITION OF "STATE
REGULATED WATERS" IN SECTION 122.3.
(D) UNDER SECTION 404(H)(5) OF CWA, STATES ARE ENTITLED AFTER PROGRAM
APPROVAL, TO ADMINISTER AND ENFORCE GENERAL PERMITS ISSUED BY THE
SECRETARY. IF THE STATE CHOOSES NOT TO ADMINISTER AND ENFORCE THESE
PERMITS, THE SECRETARY RETAINS JURISDICTION UNTIL THEY EXPIRE. IF THE
SECRETARY HAS RETAINED JURISDICTION AND IF A PERMIT APPEAL OR
MODIFICATION REQUEST IS NOT FINALLY RESOLVED WHEN THE FEDERALLY ISSUED
PERMIT EXPIRES, THE SECRETARY, UPON AGREEMENT WITH THE STATE, MAY
CONTINUE TO RETAIN JURISDICTION UNTIL THE MATTER IS RESOLVED.
(A) EXCEPT AS SPECIFIED IN PARAGRAPHS (B) AND (C) OF THIS SECTION,
ANY DISCHARGE OF DREDGED OR FILL MATERIAL THAT MAY RESULT FROM ANY OF
THE FOLLOWING ACTIVITIES IS NOT PROHIBITED BY OR OTHERWISE SUBJECT TO
REGULATION UNDER THIS SUBPART:
(1)(I) NORMAL FARMING, SILVICULTURE AND RANCHING ACTIVITIES SUCH AS
PLOWING, SEEDING, CULTIVATING, MINOR DRAINAGE, AND HARVESTING FOR THE
PRODUCTION OF FOOD, FIBER, AND FOREST PRODUCTS, OR UPLAND SOIL AND WATER
CONSERVATION PRACTICES, AS DEFINED IN PARAGRAPH (A)(1)(III) OF THIS
SECTION.
(II) TO FALL UNDER THIS EXEMPTION, THE ACTIVITIES SPECIFIED IN
PARAGRAPH (A)(1)(I) OF THIS SECTION MUST BE PART OF AN ESTABLISHED
(I.E., ON-GOING) FARMING, SILVICULTURE, OR RANCHING OPERATION.
ACTIVITIES ON AREAS LYING FALLOW AS PART OF A CONVENTIONAL ROTATIONAL
CYCLE ARE PART OF AN ESTABLISHED OPERATION. ACTIVITIES WHICH BRING AN
AREA INTO FARMING, SILVICULTURE, OR RANCHING USE ARE NOT PART OF AN
ESTABLISHED OPERATION. AN OPERATION CEASES TO BE ESTABLISHED WHEN THE
AREA ON WHICH IT WAS CONDUCTED HAS BEEN CONVERTED TO ANOTHER USE OR HAS
LAIN IDLE SO LONG THAT MODIFICATIONS TO THE HYDROLOGICAL REGIME ARE
NECESSARY TO RESUME OPERATIONS. IF AN ACTIVITY TAKES PLACE OUTSIDE THE
WATERS OF THE UNITED STATES, OR IF IT DOES NOT INVOLVE A DISCHARGE, IT
DOES NOT NEED A SECTION 404 PERMIT, WHETHER OR NOT IT IS PART OF AN
ESTABLISHED FARMING, SILVICULTURE, OR RANCHING OPERATION.
(III)(A) CULTIVATING MEANS PHYSICAL METHODS OF SOIL TREATMENT
EMPLOYED WITHIN ESTABLISHED FARMING, RANCHING AND SILVICULTURE LANDS ON
FARM, RANCH, OR FOREST CROPS TO AID AND IMPROVE THEIR GROWTH, QUALITY OR
YIELD.
(B) HARVESTING MEANS PHYSICAL MEASURES EMPLOYED DIRECTLY UPON FARM,
FOREST, OR RANCH CROPS WITHIN ESTABLISHED AGRICULTURAL AND SILVICULTURAL
LANDS TO BRING ABOUT THEIR REMOVAL FROM FARM, FOREST, OR RANCH LAND, BUT
DOES NOT INCLUDE THE CONSTRUCTION OF FARM, FOREST, OR RANCH ROADS.
(C)(1)MINOR DRAINAGE MEANS:
(I) THE DISCHARGE OR DREDGED OR FILL MATERIAL INCIDENTAL TO
CONNECTING UPLAND DRAINAGE FACILITIES TO WATERS OF THE UNITED STATES,
ADEQUATE TO EFFECT THE REMOVAL OF EXCESS SOIL MOISTURE FROM UPLAND
CROPLANDS. (CONSTRUCTION AND MAINTENANCE OF UPLAND (DRYLAND)
FACILITIES, SUCH AS DITCHING AND TILING, INCIDENTAL TO THE PLANTING,
CULTIVATING, PROTECTING, OR HARVESTING OF CROPS, INVOLVE NO DISCHARGE OF
DREDGED OR FILL MATERIAL INTO WATERS OF THE UNITED STATES, AND AS SUCH
NEVER REQUIRE A SECTION 404 PERMIT);
(II) THE DISCHARGE OF DREDGED OR FILL MATERIALS FOR THE PURPOSE OF
INSTALLING DITCHING OR OTHER SUCH WATER CONTROL FACILITIES INCIDENTAL TO
PLANTING, CULTIVATING, PROTECTING, OR HARVESTING OF RICE, CRANBERRIES OR
OTHER WETLAND CROP SPECIES, WHERE THESE ACTIVITIES AND THE DISCHARGE
OCCUR IN WATERS OF THE UNITED STATES WHICH ARE IN ESTABLISHED USE FOR
SUCH AGRICULTURAL AND SILVICULTURAL WETLAND CROP PRODUCTION;
(III) THE DISCHARGE OF DREDGED OR FILL MATERIAL FOR THE PURPOSE OF
MANIPULATING THE WATER LEVELS OF, OR REGULATING THE FLOW OR DISTRIBUTION
OF WATER WITHIN, EXISTING IMPOUNDMENTS WHICH HAVE BEEN CONSTRUCTED IN
ACCORDANCE WITH APPLICABLE REQUIREMENTS OF CWA, AND WHICH ARE IN
ESTABLISHED USE FOR THE PRODUCTION OF RICE, CRANBERRIES, OR OTHER
WETLAND CROP SPECIES;
NOTE -- THE PROVISIONS OF PARAGRAPHS (A)(1)(III)(C)(1)(II) AND
(III) OF THIS SECTION APPLY TO AREAS THAT ARE IN ESTABLISHED
USE EXCLUSIVELY FOR WETLAND CROP PRODUCTION AS WELL AS AREAS IN
ESTABLISHED USE FOR CONVENTIONAL WETLAND/NON-WETLAND CROP
ROTATION (E.G., THE ROTATIONS OF RICE AND SOYBEANS) WHERE SUCH
ROTATION RESULTS IN THE CYCLICAL OR INTERMITTENT TEMPORARY
DEWATERING OF SUCH AREAS.)
(IV) THE DISCHARGE OF DREDGED OR FILL MATERIAL INCIDENTAL TO THE
EMERGENCY REMOVAL OF SANDBARS, GRAVEL BARS, OR OTHER SIMILAR BLOCKAGES
WHICH ARE FORMED DURING FLOOD FLOWS OR OTHER EVENTS, WHERE SUCH
BLOCKAGES CLOSE OR CONSTRICT PREVIOUSLY EXISTING DRAINAGEWAYS AND, IF
NOT PROMPTLY REMOVED, WOULD RESULT IN DAMAGE TO OR LOSS OF EXISTING
CROPS OR WOULD IMPAIR OR PREVENT THE PLOWING, SEEDING, HARVESTING OR
CULTIVATING OF CROPS ON LAND IN ESTABLISHED USE FOR CROP PRODUCTION.
SUCH REMOVAL DOES NOT INCLUDE ENLARGING OR EXTENDING THE DIMENSIONS OF,
OR CHANGING THE BOTTOM ELEVATIONS OF, THE AFFECTED DRAINAGEWAY AS IT
EXISTED PRIOR TO THE FORMATION OF THE BLOCKAGE.
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REGULATIONS
REMOVAL MUST BE ACCOMPLISHED WITHIN ONE YEAR OF FORMATION OF SUCH
BLOCKAGES IN ORDER TO BE ELIGIBLE FOR EXEMPTION.
(2) MINOR DRAINAGE IN WATERS OF THE U.S. IS LIMITED TO DRAINAGE
WITHIN AREAS THAT ARE PART OF AN ESTABLISHED FARMING OR SILVICULTURE
OPERATION. IT DOES NOT INCLUDE DRAINAGE ASSOCIATED WITH THE IMMEDIATE
OR GRADUAL CONVERSION OF A WETLAND TO A NON-WETLAND (E.G., WETLAND
SPECIES TO UPLAND SPECIES NOT TYPICALLY ADAPTED TO LIFE IN SATURATED
SOIL CONDITIONS), OR CONVERSION FROM ONE WETLAND USE TO ANOTHER (FOR
EXAMPLE, SILVICULTURE TO FARMING). IN ADDITION, MINOR DRAINAGE DOES NOT
INCLUDE THE CONSTRUCTION OF ANY CANAL, DITCH, DIKE OR OTHER WATERWAY OR
STRUCTURE WHICH DRAINS OR OTHERWISE SIGNIFICANTLY MODIFIES A STREAM,
LAKE, SWAMP, BOG OR ANY OTHER WETLAND OR AQUATIC AREA CONSTITUTING
WATERS OF THE UNITED STATES. ANY DISCHARGE OF DREDGED OR FILL MATERIAL
INTO THE WATERS OF THE UNITED STATES INCIDENTAL TO THE CONSTRUCTION OF
ANY SUCH STRUCTURE OR WATERWAY REQUIRES A PERMIT.
(D) PLOWING MEANS ALL FORMS OF PRIMARY TILLAGE, INCLUDING MOLDBOARD,
CHISEL, OR WIDE-BLADE, PLOWING, DISCING, HARROWING, AND SIMILAR PHYSICAL
MEANS UTILIZED ON FARM, FOREST OR RANCH LAND FOR THE BREAKING UP,
CUTTING, TURNING OVER, OR STIRRING OF SOIL TO PREPARE IT FOR THE
PLANTING OF CROPS. THE TERM DOES NOT INCLUDE THE REDISTRIBUTION OF
SPOIL, ROCK, SAND, OR OTHER SURFICIAL MATERIALS IN A MANNER WHICH
CHANGES ANY AREA OF THE WATERS OF THE UNITED STATES TO DRY LAND. FOR
EXAMPLE, THE REDISTRIBUTION OF SURFACE MATERIALS BY BLADING, GRADING, OR
OTHER MEANS TO FILL IN WETLAND AREAS IS NOT PLOWING. ROCK CRUSHING
ACTIVITIES WHICH RESULT IN THE LOSS OF NATURAL DRAINAGE CHARACTERISTICS,
THE REDUCTION OF WATER STORAGE AND RECHARGE CAPABILITIES, OR THE
OVERBURDEN OF NATURAL WATER FILTRATION CAPACITIES DO NOT CONSTITUTE
PLOWING. PLOWING WILL NEVER INVOLVE A DISCHARGE OF DREDGED OR FILL
MATERIAL.
(E) SEEDING MEANS THE SOWING OF SEE AND PLACEMENT OF SEEDLINGS TO
PRODUCE FARM, RANCH, OR FOREST CROPS AND INCLUDES THE PLACEMENT OF SOIL
BEDS FOR SEEDS OR SEEDLINGS ON ESTABLISHED FARM AND FOREST LANDS.
(2) MAINTENANCE, INCLUDING EMERGENCY RECONSTRUCTION OF RECENTLY
DAMAGED PARTS, OF CURRENTLY SERVICEABLE STRUCTURES SUCH AS DIKES, DAMS,
LEVEES, GROINS, RIPRAP, BREAKWATERS, CAUSEWAYS, BRIDGE ABUTMENTS OR
APPROACHES, AND TRANSPORTATION STRUCTURES. MAINTENANCE DOES NOT INCLUDE
ANY MODIFICATION THAT CHANGES THE CHARACTER, SCOPE, OR SIZE OF THE
ORIGINAL FILL DESIGN. EMERGENCY RECONSTRUCTION MUST OCCUR WITHIN A
REASONABLE PERIOD OF TIME AFTER DAMAGE OCCURS IN ORDER TO QUALIFY FOR
THIS EXEMPTION.
(3) CONSTRUCTION OR MAINTENANCE OF FARM OR STOCK PONDS OR IRRIGATION
DITCHES OR THE MAINTENANCE (BUT NOT CONSTRUCTION) OF DRAINAGE DITCHES.
A SIMPLE CONNECTION OF AN IRRIGATION RETURN OR SUPPLY DITCH TO WATERS OF
THE U.S. AND RELATED BANK STABILIZATION MEASURES ARE INCLUDED WITHIN
THIS EXEMPTION. WHERE A TRAP, WEIR, GROIN, WALL, JETTY OR OTHER
STRUCTURE WITHIN WATERS OF THE U.S., WHICH WILL RESULT IN SIGNIFICANT
DISCERNABLE ALTERATIONS TO FLOW OR CIRCULATION, IS CONSTRUCTED AS PAFT
OF THE CONNECTION, SUCH CONSTRUCTION REQUIRES A 404 PERMIT.
(4) CONSTRUCTION OF TEMPORARY SEDIMENTATION BASINS ON A CONSTRUCTION
SITE WHICH DOES NOT INCLUDE PLACEMENT OF FILL MATERIAL INTO WATERS OF
THE U.S. THE TERM "CONSTRUCTION SITE" REFERS TO ANY SITE INVOLVING THE
ERECTION OF BUILDINGS, ROADS, AND OTHER DISCRETE STRUCTURES AND THE
INSTALLATION OF SUPPORT FACILITIES NECESSARY FOR CONSTRUCTION AND
UTILIZATION OF SUCH STRUCTURES. THE TERM ALSO INCLUDES ANY OTHER LAND
AREAS WHICH INVOLVE LAND-DISTURBING EXCAVATION ACTIVITIES, INCLUDING
QUARRYING OR OTHER MINING ACTIVITIES, WHERE AN INCREASE IN THE RUNOFF OF
SEDIMENT IS CONTROLLED THROUGH THE USE OF TEMPORARY SEDIMENTATION
BASINS.
(5) ANY ACTIVITY WITH RESPECT TO WHICH A STATE HAS AN APPROVED
PROGRAM UNDER SECTION 208(B)(4) OF CWA WHICH MEETS THE REQUIREMENTS OF
SECTIONS 208(B)(4)(B) AND (C).
(6) CONSTRUCTION OR MAINTENTANCE OF FARM ROADS, FOREST ROADS, OR
TEMPORARY ROADS FOR MOVING MINING EQUIPMENT, WHERE SUCH ROADS ARE
CONSTRUCTED AND MAINTAINED IN ACCORDANCE WITH BEST MANAGEMENT PRACTICES
(BMPS) TO ASSURE THAT FLOW AND CIRCULATION PATTERNS AND CHEMICAL AND
BIOLOGICAL CHARACTERISTICS OF WATERS OF THE UNITED STATES ARE NOT
IMPAIRED, THAT THE REACH OF THE WATERS OF THE UNITED STATES IS NOT
REDUCED, AND THAT ANY ADVERSE EFFECT ON THE AQUATIC ENVIRONMENT WILL BE
OTHERWISE MINIMIZED. THESE BMPS WHICH MUST BE APPLIED TO SATISFY THIS
PROVISION SHALL INCLUDE THOSE DETAILED BMPS DESCRIBED IN THE STATE'S
APPROVED PROGRAM DESCRIPTION PURSUANT TO THE REQUIREMENTS OF SECTION
123.4(H)(4), AND SHALL ALSO INCLUDE THE FOLLOWING BASELINE PROVISIONS:
(I) PERMANENT ROADS (FOR FARMING OR FORESTRY ACTIVITIES), TEMPORARY
ACCESS ROADS (FOR MINING, FORESTRY, OR FARM PURPOSES) AND SKID TRAILS
(FOR LOGGING) IN WATERS OF THE U.S. SHALL BE EHLD TO THE MINIMUM
FEASIBLE NUMBER, WIDTH, AND TOTAL LENGTH CONSISTENT WITH THE PURPOSE OF
SPECIFIC FARMING, SILVICULTURAL OR MINING OPERATIONS, AND LOCAL
TOPOGRAPHIC AND CLIMATIC CONDITIONS;
(II) ALL ROADS, TEMPORARY OR PERMANENT, SHALL BE LOCATED SUFFICIENTLY
FAR FROM STREAMS OR OTHER WATER BODIES (EXCEPT FOR PORTIONS OF SUCH
ROADS WHICH MUST CROSS WATER BODIES) TO MINIMIZE DISCHARGES OR DREDGED
OR FILL MATERIAL INTO WATERS OF THE U.S.;
(III) THE ROAD FILL SHALL BE BRIDGED, CULVERTED, OR OTHERWISE
DESIGNED TO PREVENT THE RESTRICTION OF EXPECTED FLOOD FLOWS;
(IV) THE FILL SHALL BE PROPERLY STABILIZED AND MAINTAINED DURING AND
FOLLOWING CONSTRUCTION TO PREVENT EROSION;
(V) DISCHARGES OF DREDGED OR FILL MATERIAL INTO WATERS OF THE UNITED
STATES TO CONSTRUCT A ROAD FILL SHALL BE MADE IN A MANNER THAT MINIMIZES
THE ENCROACHMENT OF TRUCKS, TRACTORS, BULLDOZERS, OR OTHER HEAVY
EQUIPMENT WITHIN WATERS OF THE UNITED STATES (INCLUDING ADJACENT
WETLANDS) THAT LIE OUTSIDE THE LATERAL BOUNDARIES OF THE FILL ITSELF;
(VI) IN DESIGNING, CONSTRUCTING, AND MAINTAINING ROADS, VEGETATIVE
DISTURBANCE IN THE WATERS OF THE U.S. SHALL BE KEPT TO A MINIMUM;
(VII) THE DESIGN, CONSTRUCTION AND MAINTENANCE OF THE ROAD CROSSING
SHALL NOT DISRUPT THE MIGRATION OR OTHER MOVEMENT OF THOSE SPECIES OF
AQUATIC LIFE INHABITING THE WATER BODY;
(VIII) BORROW MATERIAL SHALL BE TAKEN FROM UPLAND SOURCES WHENEVER
FEASIBLE;
(IX) THE DISCHARGE SHALL NOT TAKE, OR JEOPARDIZE THE CONTINUED
EXISTENCE OF A THREATENED OR ENDANGERED SPECIES AS DEFINED UNDER THE
ENDANGERED SPECIES ACT, OR ADVERSELY MODIFY OR DESTROY THE CRITICAL
HABITAT OF SUCH SPECIES;
(X) DISCHARGES INTO BREEDING AND NESTING AREAS FOR MIGRATORY
WATERFOWL, SPAWNING AREAS, AND WETLANDS SHALL BE AVOIDED IF PRACTICAL
ALTERNATIVES EXIST;
(XI) THE DISCHARGE SHALL NOT BE LOCATED IN THE PROXIMITY OF A PUBLIC
WATER SUPPLY INTAKE;
(XII) THE DISCHARGE SHALL NOT OCCUR IN AREAS OF CONCENTRATED
SHELLFISH PRODUCTION;
(XIII) THE DISCHARGE SHALL NOT OCCUR IN A COMPONENT OF THE NATIONAL
WILD AND SCENIC RIVER SYSTEM;
(XIV) THE DISCHARGE OF MATERIAL SHALL CONSIST OF SUITABLE MATERIAL
FREE FROM TOXIC POLLUTANTS IN TOXIC AMOUNTS; AND
(XV) ALL TEMPORARY FILLS SHALL BE REMOVED IN THEIR ENTIRETY AND THE
AREA RESTORED TO ITS ORIGINAL ELEVATION.
(B) IF ANY DISCHARGE OF DREDGED OR FILL MATERIAL RESULTING FROM THE
ACTIVITIES LISTED IN PARAGRAPHS (A)(1)-(6) OF THIS SECTION CONTAINS ANY
TOXIC POLLUTANT LISTED UNDER SECTION 307 OF CWA SUCH DISCHARGE SHALL BE
SUBJECT TO ANY APPLICABLE TOXIC EFFLUENT STANDARD OR PROHIBITION AND
SHALL REQUIRE A PERMIT UNDER THE STATE PROGRAM.
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EPA CONSOLIDATED PERMIT REGULATIONS
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EPA
113684
REGULATIONS
(C) ANY DISCHARGE OF DREDGED OR FILL MATERIAL INTO WATERS OF THE
UNITED STATES IDENTIFIED IN PARAGRAPHS (A)(1)-(6) OF THIS SECTION MUST
HAVE A PERMIT IF IT IS PART OF AN ACTIVITY WHOSE PURPOSE IS TO CONVERT
AN AREA OF THE WATERS OF THE UNITED STATES INTO A USE TO WHICH IT WAS
NOT PREVIOUSLY SUBJECT, WHERE THE FLOW OR CIRCULATION OF WATERS OF THE
UNITED STATES MAY BE IMPAIRED OR THE REACH OF SUCH WATERS REDUCED.
WHERE THE PROPOSED DISCHARGE WILL RESULT IN SIGNIFICANT DISCERNIBLE
ALTERATIONS TO FLOW OR CIRCULATION, THE PRESUMPTION IS THAT FLOW OR
CIRCULATION MAY BE IMPAIRED BY SUCH ALTERATION.
(NOTE -- FOR EXAMPLE, A PERMIT WILL BE REQUIRED FOR THE CONVERSION OF
A CYPRESS SWAMP TO SOME OTHER USE OR THE CONVERSION OF A WETLAND FROM
SILVICULTURAL OR AGRICULTURAL USE WHEN THERE IS A DISCHAEGE OF DREDGED
OR FILL MATERIALS INTO WATERS OF THE UNITED STATES IN CONJUNCTION WITH
CONSTRUCTION OF DIKES, DRAINAGE DITCHES OR OTHER WORKS OR STRUCTURES
UNDER TO EFFECT SUCH CONVERSION. A DISCHARGE WHICH ELEVATES THE BOTTOM
OF WATERS OF THE UNITED STATES WITHOUT CONVERTING IT TO DRY LAND DOES
NOT THEREBY REDUCE THE REACH OF, BUT MAY ALTER THE FLOW OR CIRCULATION
OF, WATERS OF THE UNITED STATES.)
(D) FEDERAL PROJECTS WHICH QUALIFY UNDER THE CRITERIA CONTAINED IN
SECTION 404(R) OF CWA (FEDERAL PROJECTS AUTHORIZED BY CONGRESS WHERE AN
EIS HAS BEEN SUBMITTED TO CONGRESS PRIOR TO AUTHORIZATION OR AN
APPROPRIATION) ARE EXEMPT FROM STATE SECTION 404 PERMIT REQUIREMENTS,
BUT MAY BE SUBJECT TO OTHER STATE OR FEDERAL REQUIREMENTS.
NO PERMIT SHALL BE ISSUED BY THE STATE DIRECTOR IN THE FOLLOWING
CIRCUMSTANCES:
(A) WHEN THE CONDITIONS OF THE PERMIT DO NOT COMPLY WITH THE
REQUIREMENTS OF CWA, OR REGULATIONS AND GUIDELINES IMPLEMENTING CWA,
INCLUDING THE SECTION 404(B)(1) ENVIRONMENTAL GUIDELINES (40 CFR PART
230).
(B) WHEN THE REGIONAL ADMINISTRATOR HAS OBJECTED TO ISSUANCE OF THE
PERMIT UNDER SECTION 404(J) OF CWA AND THE OBJECTION HAS NOT BEEN
RESOLVED.
(C) WHEN, IN THE JUDGMENT OF THE SECRETARY OF THE ARMY ACTING THROUGH
THE CHIEF OF ENGINEERS, ANCHORAGE AND NAVIGATION IN OR ON ANY OF THE
WATERS OF THE UNITED STATES WOULD BE SUBSTANTIALLY IMPAIRED BY THE
DISCHARGE.
(D) WHEN THE PROPOSED DISCHARGE WOULD BE INTO A DEFINED AREA FOR
WHICH SPECIFICATION AS A DISPOSAL SITE HAS BEEN PROHIBITED, RESTRICTED,
DENIED, OR WITHDRAWN BY THE ADMINISTRATOR UNDER SECTION 404(C) OF CWA,
AND THE DISCHARGE WOULD FAIL TO COMPLY WITH THE ADMINISTRATOR'S ACTIONS
UNDER THAT AUTHORITY.
(A) PUBLICITY AND PREAPPLICATION CONSULTATION. THE STATE DIRECTOR
SHALL MAINTAIN A PROGRAM TO INFORM, TO THE EXTENT POSSIBLE, POTENTIAL
APPLICANTS FOR PERMITS OF THE REQUIREMENTS OF THE STATE PROGRAM AND OF
THE STEPS REQUIRED TO OBTAIN PERMITS FOR ACTIVITIES IN STATE REGULATED
WATERS. THE STATE DIRECTOR IS ENCOURAGED TO INCLUDE PREAPPLICATION
CONSULTATION AS PART OF THIS PROGRAM TO ASSIST APPLICANTS IN
UNDERSTANDING THE REQUIREMENTS OF THE ENVIRONMENTAL GUIDELINES ISSUED
UNDER SECTION 404(B)(1) OF CWA (40 CFR PART 230) AND IN FULFILLING
PERMIT APPLICATION REQUIREMENTS.
(B) APPLICATION FOR PERMIT. EXCEPT WHEN AN ACTIVITY IS AUTHORIZED BY
A GENERAL PERMIT UNDER SECTION 123.95 OR IS EXEMPT FROM THE REQUIREMENT
TO OBTAIN A PERMIT UNDER SECTION 123.92, ANY PERSON WHO PROPOSES TO
DISCHARGE DREDGED OR FILL MATERIAL INTO STATE REGULATED WATER SHALL
COMPLETE, SIGN AND SUBMIT AN APPLICATION TO THE STATE DIRECTOR, STATE
APPLICATION FORMS ARE SUBJECT TO EPA REVIEW AND APPROVAL.
(C) CONTENT OF APPLICATION. A COMPLETE APPLICATION SHALL INCLUDE THE
FOLLOWING INFORMATION;
(1) A COMPLETE DESCRIPTION OF THE PROPOSED ACTIVITY INCLUDING;
(I) NAME, ADDRESS, AND PHONE NUMBER OF THE APPLICANT; THE NAMES,
ADDRESSES, AND PHONE NUMBERS OF OWNERS OF PROPERTIES ADJACENT TO THE
SITE; AND, IF APPROPRIATE, THE LOCATION AND DIMENSIONS OF ADJACENT
STRUCTURES;
(II) A DESCRIPTION OF THE SOURCE OF THE DREDGED OR FILL MATERIAL AND
METHOD OF DREDGING USED, IF ANY; A DESCRIPTION OF THE TYPE, COMPOSITION
AND QUANTITY OF THE MATERIAL; THE PROPOSED METHOD OF TRANSPORTATION AND
DISPOSAL OF THE MATERIAL, INCLUDING THE TYPE OF EQUIPMENT TO BE USED;
AND THE EXTENT (IN ACRES) OF THE AREA OF WATERS OF THE UNITED STATES TO
BE FILLED OR USED FOR DISPOSAL;
(III) THE PURPOSE AND INTENDED USE OF THE PROPOSED ACTIVITY
(INCLUDING WHETHER IT IS WATER-DEPENDENT); A DESCRIPTION OF THE USE OF
ANY STRUCTURES TO BE ERECTED ON THE FILL; AND A SCHEDULE FOR THE
PROPOSED ACTIVITY;
(IV) A LIST OF THE APPROVALS REQUIRED BY OTHER FEDERAL, INTERSTATE,
STATE AND LOCAL AGENCIES FOR THE ACTIVITY, INCLUDING ALL APPROVALS OR
DENIALS RECEIVED; AND
(V) A VICINITY MAP IDENTIFYING THE PROPOSED DISPOSAL SITE AND THE
LOCAL JURISDICTION CLOSEST TO THE DISPOSAL SITE.
(2) INFORMATION ABOUT THE DISPOSAL SITE NEEDED TO EVALUATE COMPLIANCE
WITH 40 CFR PART 230, INCLUDING THE FOLLOWING:
(I) A DESCRIPTION OF KNOWN ALTERNATIVES TO THE PROPOSED DISCHARGE,
INCLUDING ALTERNATIVE DISPOSAL SITES, CONSTRUCTION METHODS, METHODS OF
DISCHARGE, AND REASONS FOR REJECTING THE ALTERNATIVES;
(II) A DESCRIPTION OF SPECIAL AQUATIC SITES, PUBLIC USE AREAS,
WILDLIFE REFUGES, AND PUBLIC WATER SUPPLY INTAKES IN THE AFFECTED OR
ADJACENT AREAS THAT MAY REQUIRE SPECIAL PROTECTION OR PRESERVATION;
(III) PLANTS, FISH, SHELLFISH, AND WILDLIFE IN THE DISPOSAL SITE
WHICH MAY BE DEPENDENT ON WATER QUALITY AND QUANTITY;
(IV) USES OF THE DISPOSAL SITE WHICH MIGHT AFFECT HUMAN HEALTH AND
WELFARE; AND
(V) A DESCRIPTION OF TECHNOLOGIES OR MANAGEMENT PRACTICES BY WHICH
THE APPLICANT PROPOSES TO MINIMIZE ADVERSE ENVIRONMENTAL EFFECTS OF THE
DISCHARGE. GUIDELINES FOR MINIMIZING THE ADVERSE EFFECTS OF DISCHARGES
OF DREDGED OR FILL MATERIAL ARE FOUND IN 40 CFR PART 230.
(NOTE -- THE STATE SHALL PROVIDE PERMIT APPLICANTS WITH GUIDANCE,
EITHER THROUGH THE APPLICATION FORM OR ON AN INDIVIDUAL BASIS, REGARDING
THE LEVEL OF DETAIL OF INFORMATION AND DOCUMENTATION REQUIRED UNDER THIS
PARAGRAPH. THE LEVEL OF DETAIL SHALL BE REASONABLY COMMENSURATE WITH
THE TYPE AND SIZE OF DISCHARGE, PROXIMITY TO CRITICAL AREAS, LIKELIHOOD
OF PRESENCE OF LONG-LIVED TOXIC CHEMICAL SUBSTANCES, AND DEGREE OF
ENVIRONMENTAL DEGRADATION.)
(3) ONE ORIGINAL SET OF DRAWINGS AND MAPS, OR ONE SET OF DRAWINGS AND
MAPS OF REPRODUCIBLE QUALITY, INCLUDING:
(I) A MAP SHOWING THE FOLLOWING IN PLAN VIEW;
(A) LOCATION OF THE ACTIVITY SITE INCLUDING LATITUDE, LONGITUDE, AND
RIVER MILE, IF KNOWN;
(B) NAME OF WATERWAY;
(C) ALL APPLICABLE POLITICAL (E.G., COUNTY, BOROUGH, TOWN, CITY,
ETC.) BOUNDARY LINES;
(D) NAMES OF ALL MAJOR ROADS IN THE VICINITY OF THE SITE INCLUDING
THE ROAD PROVIDING THE CLOSEST PRACTICABLE ACCESS TO THE SITE;
(E) NORTH ARROW;
(F) ARROWS SHOWING FLOW AND CIRCULATION PATTERNS;
(G) EXISTING SHORELINES OR ORDINARY HIGH WATERMARK;
(H) LOCATION OF KNOWN WETLANDS;
(I) WATER DEPTHS AND BOTTOM CONFIGURATION AROUND THE PROJECT;
(J) DELINEATION OF DISPOSAL SITE;
(K) SIZE-RELATIONSHIP BETWEEN THE PROPOSED DISPOSAL SITE AND AFFECTED
WATERS (E.G., A 1/4 ACRE FILL IN A 15-ACRE WETLAND);
(L) LOCATION OF PREVIOUSLY USED DREDGED MATERIAL DISPOSAL SITES WITH
REMAINING CAPACITY IN THE VICINITY OF THE PROJECT.
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EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 186 OF 225
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EPA
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REGULATIONS
THE MAP MUST INDICATE RETENTION LEVEES, WEIRS, AND ANY OTHER DEVICES FOR
RETAINING DREDGED OR FILL MATERIALS; AND
(M) LOCATION OF STRUCTURES, IF ANY, IN WATERS OF THE UNITED STATES
IMMEDIATELY ADJACENT TO THE PROPOSED ACTIVITY, INCLUDING PERMIT NUMBERS,
IF KNOWN. IDENTIFY PURPOSES OF ALL STRUCTURES.
(II) A CROSS-SECTIONAL VIEW OF THE PROPOSED PROJECT SHOWING THE
FOLLOWING;
(A) WATER ELEVATIONS;
(B) WATER DEPTHS AT WATERWARD FACE OF PROPOSED WORK, OR IF DREDGEING
IS PROPOSED, SHOWING DREDGING GRADE;
(C) CROSS-SECTION OF FILL;
(D) ELEVATION OF SPOIL AREAS;
(E) LOCATION OF WETLANDS; AND
(F) DELINEATION OF DISPOSAL SITE.
(III) NOTES ON ALL MAPS OR DRAWINGS SUBMITTED, INCLUDING:
(A) A LIST OF NAMES OF ADJACENT PROPERTY OWNERS WHOSE PROPERTY ALSO
ADJOINS THE WATER AND WHO ARE NOT SHOWN IN THE PLAN VIEW;
(B) A TITLE BLOCK FOR EACH SHEET SUBMITTED IDENTIFYING THE PROPOSED
ACTIVITY AND CONTAINING THE NAME OF THE BODY OF WATER; RIVER MILE, IF
APPLICABLE; NAME OF COUNTY , STATE AND NEAREST INCORPORATED
MUNICIPALITY; NAME OF APPLICANT; NUMBER OF THE SHEET AND THE TOTAL
NUMBER OF SHEETS IN SET; AND DATE THE DRAWING WAS PREPARED; AND
(C) GRAPHIC OR NUMERICAL SCALE.
(A) COVERAGE. THE STATE DIRECTOR MAY ISSUE A GENERAL PERMIT FOR
SIMILAR ACTIVITIES AS SPECIFIED IN PARAGRAPH (B)(1) OF THIS SECTION
WITHIN A DEFINED GEOGRAPHIC AREA AS SPECIFIED IN PARAGRAPH (B)(2) OF
THIS SECTION, IF HE OR SHE DETERMINES THAT THE REGULATED ACTIVITIES WILL
CAUSE ONLY MINIMAL ADVERSE ENVIRONMENTAL EFFECTS WHEN PERFORMED
SEPARATELY AND WILL HAVE ONLY MINIMAL CUMULATIVE ADVERSE EFFECTS ON THE
ENVIRONMENT.
(B) CONDITIONS. IN ADDITION TO SECTIONS 122.7 AND 123.97, AND THE
APPLICABLE REQUIREMENTS OF SECTION 123.98, EACH GENERAL PERMIT SHALL
CONTAIN CONDITIONS AS FOLLOWS:
(1) ACTIVITIES: A SPECIFIC DESCRIPTION OF THE TYPE(S) OF ACTIVITIES
WHICH ARE AUTHORIZED, INCLUDING LIMITATIONS FOR ANY SINGLE OPERATION, TO
ENSURE THAT THE REQUIREMENTS OF PARAGRAPH (A) OF THIS SECTION ARE
SATISFIED. AT A MINIMUM, THESE LIMITATIONS SHALL INCLUDE:
(I) THE MAXIMUM QUANTITY OF MATERIAL THAT MAY BE DISCHARGED;
(II) THE TYPE(S) OF MATERIAL THAT MAY BE DISCHARGED;
(III) THE DEPTH OF FILL PERMITTED;
(IV) THE MAXIMUM EXTENT TO WHICH AN AREA MAY BE MODIFIED; AND
(V) THE SIZE AND TYPE OF STRUCTURES THAT MAY BE CONSTRUCTED.
(2) AREA: A PRECISE DESCRIPTION OF THE GEOGRAPHIC AREA TO WHICH THE
GENERAL PERMIT APPLIES INCLUDING, WHEN APPROPRIATE, LIMITATIONS ON THE
TYPES OF WATERS OR WETLANDS WHERE OPERATIONS MAY BE CONDUCTED, TO ENSURE
THAT THE REQUIREMENTS OF PARAGRAPH (A) OF THIS SECTION ARE SATISFIED.
(3) NOTICE: THE PERMIT SHALL CONTAIN A REQUIREMENT THAT NO ACTIVITY
IS AUTHORIZED UNDER THE GENERAL PERMIT UNLESS THE DIRECTOR RECEIVES
NOTICE AT LEAST 30 DAYS IN ADVANCE OF THE DATE WHEN THE PROPOSED
ACTIVITY IS TO COMMENCE. THE DIRECTOR MAY REQUIRE ANY INFORMATION IN
THE NOTICE NECESSARY TO DETERMINE WHETHER THE CONDITIONS OF THE GENERAL
PERMIT WILL BE SATISFIED. IF WITHIN 15 DAYS OF THE DATE OF SUBMISSION
OF THE NOTICE THE OWNER OR OPERATOR HAS NOT BEEN INFORMED BY THE STATE
DIRECTOR OF HIS OR HER INTENT TO REQUIRE AN INDIVIDUAL PERMIT
APPLICATION, THE OWNER OR OPERATOR MAY COMMENCE OPERATIONS UNDER THE
GENERAL PERMIT.
(C) REQUIRING AN INDIVIDUAL PERMIT.
(1) UPON RECEIVING NOTICE UNDER PARAGRAPH (B)(3) OF THIS SECTION, THE
STATE DIRECTOR MAY REQUIRE, AT HIS DISCRETION, THAT THE OWNER OR
OPERATOR APPLY FOR AN INDIVIDUAL PERMIT. CASES WHERE AN INDIVIDUAL
PERMIT MAY BE REQUIRED INCLUDE:
(I) THE ACTIVITY HAS MORE THAN A MINIMAL ADVERSE ENVIRONMENTAL
EFFECT;
(II) THE CUMULATIVE EFFECTS ON THE ENVIRONMENT OF THE AUTHORIZED
ACTIVITIES ARE MORE THAN MINIMAL; OR
(III) THE DISCHARGER IS NOT IN COMPLIANCE WITH THE CONDITIONS OF THE
GENERAL PERMIT.
(2) WHEN THE STATE DIRECTOR NOTIFIES THE OWNER OR OPERATOR WITHIN 15
DAYS OF RECEIPT OF NOTICE UNDER PARAGRAPH (B)(3) OF THIS SECTION THAN AN
INDIVIDUAL PERMIT APPLICATION IS REQUIRED FOR THAT ACTIVITY, THE
ACTIVITY SHALL NOT BE AUTHORIZED BY THE GENERAL PERMIT.
(3) THE DIRECTOR MAY REQUIRE ANY PERSON AUTHORIZED UNDER A GENERAL
PERMIT TO APPLY FOR AN INDIVIDUAL PERMIT.
(A) COVERAGE. NOTWITHSTANDING ANY OTHER PROVISION OF THIS PART OR
PART 124, THE STATE DIRECTOR MAY TEMPORARILY PERMIT A SPECIFIC DREDGE OR
FILL ACTIVITY IF:
(1) AN UNACCEPTABLE HAZARD TO LIFE OR SEVERE LOSS OF PROPERTY WILL
OCCUR IF AN EMERGENCY PERMIT IS NOT GRANTED; AND
(2) THE ANTICIPATED THREAT OR LOSS MAY OCCUR BEFORE A PERMIT CAN BE
ISSUED OR MODIFIED UNDER THE PROCEDURES OTHERWISE REQUIRED BY THIS PART
AND PART 124.
(B) REQUIREMENTS FOR ISSUANCE. (1) THE EMERGENCY PERMIT SHALL
INCORPORATE, TO THE EXTENT POSSIBLE AND NOT INCONSISTENT WITH THE
EMERGENCY SITUATION, ALL APPLICABLE REQUIREMENTS OF SECTIONS 122.7,
123.97 AND 123.98.
(2) ANY EMERGENCY PERMIT SHALL BE LIMITED IN DURATION TO THE TIME
REQUIRED TO COMPLETE THE AUTHORIZED EMERGENCY ACTION, NOT TO EXCEED 90
DAYS.
(3) THE EMERGENCY PERMIT MUST HAVE A CONDITION REQUIRING RESTORATION
OF THE DISPOSAL SITE (FOR EXAMPLE, REMOVAL OF FILL, STEPS TO PREVENT
EROSION). IF MORE THAN 90 DAYS FROM ISSUANCE IS NECESSARY TO COMPLETE
RESTORATION, THE PERMIT MAY BE EXTENDED FOR THIS PURPOSE ONLY.
(4) THE EMERGENCY PERMIT MAY BE ORAL OR WRITTEN. IF ORAL, IT MUST BE
FOLLOWED WITHIN FIVE DAYS BY A WRITTEN EMERGENCY PERMIT.
(5) NOTICE OF THE EMERGENCY PERMIT SHALL BE PUBLISHED AND PUBLIC
COMMENTS RECEIVED IN ACCORDANCE WITH APPLICABLE REQUIREMENTS OF SECTIONS
124.10 AND 124.11 AS SOON AS POSSIBLE BUT NO LATER THAN 10 DAYS AFTER
THE ISSUANCE DATE.
(6) THE EMERGENCY PERMIT MAY BE TERMINATED AT ANY TIME WITHOUT
PROCESS IF THE STATE DIRECTOR DETERMINES THAT TERMINATION IS APPROPRIATE
TO PROTECT HUMAN HEALTH OR THE ENVIRONMENT.
THE FOLLOWING CONDITIONS, IN ADDITION TO THOSE SET FORTH IN SECTION
122.7, APPLY TO ALL 404 PERMITS:
(A) THE PERMITTEE NEED NOT COMPLY WITH THE CONDITIONS OF THIS PERMIT
TO THE EXTENT AND FOR THE DURATION THAT SUCH NONCOMPLIANCE IS AUTHORIZED
IN AN EMERGENCY PERMIT. (SEE SECTION 123.96.)
(B) ACTIVITIES ARE NOT CONDUCTED UNDER THE AUTHORITY OF THIS PERMIT
IF THEY ARE NOT SPECIFICALLY IDENTIFIED AND AUTHORIZED IN THIS PERMIT.
(C) THE PERMITTEE SHALL MAINTAIN THE AUTHORIZED WORK AREA IN GOOD
CONDITION AND IN ACCORDANCE WITH THE REQUIREMENTS CONTAINED IN THIS
PERMIT.
(D) IF ANY APPLICABLE WATER QUALITY STANDARDS ARE REVISED OR
MODIFIED, OR IF A TOXIC EFFLUENT STANDARD OR PROHIBITION UNDER CWA
SECTION 307(A) IS ESTABLISHED FOR A POLLUTANT PRESENT IN THE PERMITTEE'S
DISCHARGE AND IS MORE STRINGENT THAN ANY LIMITATION IN THE PERMIT, THE
PERMIT SHALL BE PROMPTLY MODIFIED TO CONFORM TO THE STANDARD, LIMITATION
OR PROHIBITION.
IN ADDITION TO THE CONDITIONS ESTABLISHED UNDER SECTION 122.8(A),
EACH 404 PERMIT SHALL INCLUDE CONDITIONS MEETING THE FOLLOWING
REQUIREMENTS, WHEN APPLICABLE:
(A) IDENTIFICATION. A SPECIFIC IDENTIFICATION AND DESCRIPTION OF THE
AUTHORIZED ACTIVITY, INCLUDING:
(1) THE NAME AND ADDRESS OF THE PERMITTEE AND THE PERMIT APPLICATION
IDENTIFICATION NUMBER.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 187 OF 225
COSTLE DM ADMINISTRATOR
EPA
113686
REGULATIONS
(2) THE USE OR PURPOSE OF THE DISCHARGE;
(3) THE TYPE AND QUANTITY OF THE MATERIALS TO BE DISCHARGED;
(4) ANY STRUCTURES PROPOSED TO BE ERECTED ON FILL MATERIAL; AND
(5) THE LOCATION AND BOUNDARIES OF THE DISCHARGE SITE(S), INCLUDING A
DETAILED SKETCH AND THE NAME AND A DESCRIPTION OF AFFECTED STATE
REGULATED WATERS.
(B) ENVIRONMENTAL GUIDELINES. PROVISIONS ENSURING THAT THE DISCHARGE
WILL BE CONDUCTED IN COMPLIANCE WITH THE ENVIRONMENTAL GUIDELINES ISSUED
UNDER SECTION 404(B)(1) OF CWA (40 CFR PART 230), INCLUDING CONDITIONS
TO ENSURE THAT THE DISCH ARGE WILL BE CONDUCTED IN A MANNER WHICH
MINIMIZES ADVERSE IMPACTS UPON THE PHYSICAL, CHEMICAL, AND BIOLOGICAL
INTEGRITY OF THE WATERS OF THE UNITED STATES, SUCH AS REQUIREMENTS FOR
RESTORATION OR MITIGATION.
(C) WATER QUALITY STANDARDS. ANY REQUIREMENTS NECESSARY TO COMPLY
WITH WATER QUALITY STANDARDS ESTABLISHED UNDER APPLICABLE FEDERAL OR
STATE LAW. IF AN APPLICABLE WATER QUALITY STANDARD IS PROMULGATED AFTER
THE PERMIT IS ISSUED, IT SHALL BE MODIFIED AS PROVIDED IN SECTION
123.97(D).
(D) TOXIC EFFLUENT GUIDELINES OR PROHIBITIONS. REQUIREMENTS
NECESSARY TO COMPLY WITH ANY APPLICABLE TOXIC EFFLUENT STANDARD OR
PROHIBITION UNDER SECTION 307(A) OF CWA OR APPLICABLE STATE OR LOCAL
LAW. IF AN APPLICABLE TOXIC EFFLUENT STANDARD OR PROHIBITION IS
PROMULGATED AFTER THE PERMIT IS ISSUED, IT SHALL BE MODIFIED AS PROVIDED
IN SECTION 123.97(D).
(E) BEST MANAGEMENT PRACTICES. APPLICABLE BMPS APPROVED BY A
STATEWIDE CWA SECTION 208(B)(4) AGENCY AS PROVIDED IN THE AGREEMENT
DESCRIBED IN SECTION 123.102(A)(1).
(F) GENERAL PERMITS. ANY CONDITIONS NECESSARY FOR GENERAL PERMITS AS
REQUIRED UNDER SECTION 123.95.
(G) COMMENCEMENT OF WORK. A SPECIFIC DATE ON WHICH THE PERMIT SHALL
AUTOMATICALLY EXPIRE, UNLESS PREVIOUSLY REVOKED AND REISSUED OR MODIFIED
OR CONTINUED, IF THE AUTHORIZED WORK HAS NOT BEEN COMMENCED.
BEFORE A STATE PROGRAM IS APPROVED UNDER THIS PART, THE STATE SHALL
ENTER INTO A MEMORANDUM OF AGREEMENT WITH THE SECRETARY. WHERE MORE
THAN ONE AGENCY WITHIN A STATE HAS RESPONSIBILITY FOR ADMINISTERING THE
STATE PROGRAM, ALL OF THE RESPONS IBLE AGENCIES SHALL BE PARTIES TO THE
MEMORANDUM OF AGREEMENT. THE MEMORANDUM OF AGREEMENTS SHALL INCLUDE:
(A) A DESCRIPTION OF STATE REGULATED WATERS, AS IDENTIFIED BY THE
SECRETARY.
(B) WHERE AN AGREEMENT IS REACHED, PROCEDURES FOR JOINT PROCESSING OF
PERMITS FOR ACTIVITIES WHICH REQUIRE BOTH A SECTION 404 PERMIT FROM THE
STATE AND A SECTION 9 OR 10 PERMIT FROM THE SECRETARY UNDER THE RIVERS
AND HARBORS ACT OF 1899, PROVIDED SUCH PROCEDURES SATISFY THE
REQUIREMENTS OF THIS PART.
(C) AN IDENTIFICATION OF THOSE GENERAL PERMITS, IF ANY, ISSUED BY THE
SECRETARY, THE TERMS AND CONDITIONS OF WHICH THE STATE INTENDS TO
ADMINISTER AND ENFORCE UPON RECEIVING APPROVAL OF ITS PROGRAM AND A PLAN
FOR TRANSFERRING RESPONSIBILITY FOR THESE PERMITS TO THE STATE,
INCLUDING PROCEDURES FOR THE PROMPT TRANSMISSION FROM THE SECRETARY TO
THE STATE DIRECTOR OF RELEVANT INFORMATION NOT ALREADY IN THE POSSESSION
OF THE STATE DIRECTOR INCLUDING SUPPORT FILES FOR PERMIT ISSUANCE,
COMPLIANCE REPORTS AND RECORDS OF ENFORCEMENT ACTIONS. IN MANY
INSTANCES STATES WILL LACK THE AUTHORITY TO DIRECTLY ADMINISTER PERMITS
ISSUED BY THE FEDERAL GOVERNMENT. HOWEVER, PROCEDURES AUTHORIZED UNDER
STATE LAW MAY BE ESTABLISHED TO TRANSFER RESPONSIBILITY FOR THESE
PERMITS.
(D) PROCEDURES WHEREBY THE SECRETARY WILL, UPON PROGRAM APPROVAL,
TRANSFER TO THE STATE PENDING SECTION 404 PERMIT APPLICATION AND OTHER
RELEVANT INFORMATION, NOT ALREADY IN THE POSSESSION OF THE STATE
DIRECTOR.
(E) PROCEDURES TO ENSURE THAT THE STATE DIRECTOR WILL NOT ISSUE A
PERMIT ON THE BASIS OF ANY APPLICATION RECEIVED FROM THE SECRETARY WHICH
THE SECRETARY HAS IDENTIFIED AS INCOMPLETE OR OTHERWISE DEFICIENT UNTIL
THE STATE DIRECTOR RECEIVES INFORMATION TO CORRECT THE DEFICIENCY.
(F) A PROVISION THAT THE STATE SHALL NOT ISSUE ANY SECTION 404 PERMIT
FOR A DISCHARGE WHICH, IN THE JUDGMENT OF THE SECRETARY AFTER
CONSULTATION WITH THE SECRETARY OF THE DEPARTMENT IN WHICH THE COAST
GUARD IS OPERATING, WOULD SUBSTANTIALLY IMPAIR ANCHORAGE OR NAVIGATION.
(G) THOSE CLASSES OR CATEGORIES, IF ANY, OF PROPOSED STATE PERMITS
FOR WHICH THE SECRETARY WAIVES THE RIGHT TO REVIEW.
(H) OTHER MATTERS NOT INCONSISTENT WITH THIS PART THAT THE SECRETARY
AND THE STATE DEEM APPROPRIATE.
(NOTE -- FOR EXAMPLE, WHERE A STATE PERMIT PROGRAM INCLUDES COVERAGE
OF THOSE TRADITIONALLY NAVIGABLE WATERS IN WHICH ONLY THE SECRETARY MAY
ISSUE SECTION 404 PERMITS (BY VIRTUE OF SECTION 404(G)(1) OF CWA), THE
STATE IS STRONGLY ENCOURAGED TO ESTABLISH IN THIS MOA PROCEDURES FOR
JOINT PROCESSING OF FEDERAL AND STATE PERMITS, INCLUDING JOINT PUBLIC
NOTICES AND PUBLIC HEARINGS.)
(A) THE MEMORANDUM OF AGREEMENT UNDER SECTION 123.6 SHALL PROVIDE FOR
THE FOLLOWING:
(1) PROMPT TRANSMISSION TO THE REGIONAL ADMINISTRATOR (BY CERTIFIED
MAIL) AND TO THE CORPS OF ENGINEERS, THE U.S. FISH AND WILDLIFE SERVICE,
AND THE NATIONAL MARINE FISHERIES SERVICE OF A COPY OF ALL COMPLETE
PERMIT APPLICATIONS RECEIVED BY THE STATE DIRECTOR, EXCEPT THOSE FOR
WHICH PERMIT REVIEW HAS BEEN WAIVED UNDER SECTION 123.6(F)(1)(I). THE
STATE SHALL SUPPLY EPA, THE CORPS OF ENGINEERS, THE U.S. FISH AND
WILDLIFE SERVICE, AND THE NATIONAL MARINE FISHERIES SERVICE WITH COPIES
OF PERMIT APPLICATIONS FOR WHICH PERMIT REVIEW HAS BEEN WAIVED WHENEVER
REQUESTED BY SUCH AGENCIES. WHERE STATE LAW REQUIRES PREPARATION OF AN
ENVIRONMENTAL IMPACT STATEMENT (EIS) OR SIMILAR DOCUMENT, AND SUCH EIS
OR OTHER DOCUMENT IS AVAILABLE, THE EIS OR OTHER DOCUMENT SHALL
ACCOMPANY THE PERMIT APPLICATION WHEN TRANSMITTED TO THE REGIONAL
ADMINISTRATOR.
(2) PROMPT TRANSMISSION TO THE REGIONAL ADMINISTRATOR (BY CERTIFIED
MAIL) AND TO THE CORPS OF ENGINEERS, THE U.S. FISH AND WILDLIFE SERVICE,
AND THE NATIONAL MARINE FISHERIES SERVICE OF NOTICE OF EVERY ACTION
TAKEN BY THE STATE AGENCY RELATED TO THE CONSIDERATION OF ANY PERMIT
APPLICATION, INCLUDING A COPY OF EACH DRAFT PERMIT PREPARED, AND ANY
CONDITIONS, REQUIREMENTS, OR DOCUMENTS WHICH ARE RELATED TO THE DRAFT
PERMIT OR WHICH AFFECT THE AUTHORIZATION OF THE DRAFT PERMIT. A DRAFT
PERMIT SHALL BE PREPARED BY THE STATE AND TRANSMITTED TO EPA:
(I) AT THE TIME OF TRANSMISSION OF THE COMPLETE PERMIT APPLICATION,
FOR DISCHARGES LISTED IN SECTION 123.6(F)(1)(I) (A)-(E);
(II) UPON REQUEST OF EPA IN ACCORDANCE WITH SECTION 123.101 (E)(3),
FOR DISCHARGES NOT LISTED IN SECTION 123.6(F)(1)(I) (A)-(E), UNLESS EPA
HAS WAIVED REVIEW UNDER SECTION 123.6(F) (1)(I).
(3) PROMPT TRANSMISSION TO THE REGIONAL ADMINISTRATOR, THE CORPS OF
ENGINEERS, THE U.S. FISH AND WILDLIFE SERVICE, AND THE NATIONAL MARINE
FISHERIES SERVICE OF A COPY OF EACH DRAFT GENERAL PERMIT. A DRAFT
GENERAL PERMIT SHALL BE PREPARED BY THE STATE WHENEVER THE STATE INTENDS
TO ISSUE A GENERAL PERMIT.
(4) TRANSMISSION TO THE REGIONAL ADMINISTRATOR, THE CORPS OF
ENGINEERS, THE U.S. FISH AND WILDLIFE SERVICE, AND THE NATIONAL MARINE
FISHERIES SERVICE OF A COPY OF EVERY ISSUED PERMIT FOLLOWING ISSUANCE,
ALONG WITH ANY AND ALL CONDITIONS AND REQUIREMENTS.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 188 OF 225
COSTLE DM ADMINISTRATOR
EPA
113687
REGULATIONS
(B)(1) STATE SECTION 404 PROGRAM SHALL COMPLY WITH THE DRAFT PERMIT
REQUIREMENTS OF SECTIONS 124.6(A), (C), (D), AND (E) AND 124.8 FOR THOSE
DISCHARGES WHICH REQUIRE A DRAFT PERMIT UNDER PARAGRAPH (A)(2) OF THIS
SECTION AND FOR THOSE DISCHARGES TO BE REGULATED BY GENERAL PERMITS.
FOR DISCHARGES WHICH REQUIRE A DRAFT PERMIT UNDER PARAGRAPH (A)(2) OF
THIS SECTION, PUBLIC REVIEW AND EPA REVIEW, UNDER SECTION 123.101, SHALL
BE BASED ON THE PERMIT APPLICATION AND THE DRAFT PERMIT. FOR DISHCARGES
TO BE REGULATED BY GENERAL PERMITS, PUBLIC REVIEW AND EPA REVIEW SHALL
BE BASED ON THE DRAFT GEERAL PERMIT.
(2) FOR ALL OTHER DISCHARGES, PUBLIC REVIEW AND EPA REVIEW, IF NOT
WAIVED UNDER SECTION 123.6(F)(1)(I), SHALL BE BASED ON THE PERMIT
APPLICATION. FOR THESE DISCHARGES, STATES NEED NOT COMPLY WITH SECTIONS
124.6(A)(C),(D), AND (E) OR 124.8.
(A) THE MEMORANDUM OF AGREEMENT SHALL PROVIDE THAT THE REGIONAL
ADMINISTRATOR MAY COMMENT UPON, OBJECT TO, OR MAKE RECOMMENDATIONS WITH
RESPECT TO PERMIT APPLICATIONS, DRAFT PERMITS (IF PREPARED UNDER SECTION
123.100), OR DRAFT GENERAL PERMITS WITHIN 90 DAYS OF RECEIPT. IF THE
REGIONAL ADMINISTRATOR INTENDS TO COMMENT UPON, OBJECT TO, OR MAKE
RECOMMENDATIONS WITH RESPECT TO A PERMIT APPLICATION, DRAFT PERMIT, OR
DRAFT GENERAL PERMIT, HE OR SHE SHALL NOTIFY THE STATE DIRECTOR OF HIS
OR HER INTENT WITHIN 30 DAYS OF RECEIPT. THE REGIONAL ADMINISTRATOR MAY
NOTIFY THE STATE WITHIN 30 DAYS OF RECEIPT THAT THERE IS NO COMMENT BUT
RESERVE THE RIGHT TO OBJECT WITHIN 90 DAYS OF RECEIPT, BASED ON ANY NEW
INFORMATION BROUGHT OUT BY THE PUBLIC DURING THE COMMENT PERIOD OR AT A
HEARING. THE REGIONAL ADMINISTRATOR SHALL SEND A COPY OF ANY COMMENT,
OBJECTION, OR RECOMMENDATION TO THE PERMIT APPLICANT.
(B) WITHIN 90 DAYS FOLLOWING RECEIPT OF A PERMIT APPLICATION, DRAFT
PERMIT OR DRAFT GENERAL PERMIT FOR WHICH THE REGIONAL ADMINISTRATOR HAS
PROVIDED NOTIFICATION UNDER PAFAGRAPH (A) OF THIS SECTION, THE REGIONAL
ADMINISTRATOR MAY O0JECT TO PERMIT ISSUANCE. IN ORDER TO OBJECT, THE
REGIONAL ADMINISTRATOR SHALL SET FORTH IN WRITING AND TRANSMIT TO THE
STATE DIRECTOR.
(1) A STATEMENT OF THE REASON(S) FOR THE OBJECTION (INCLUDING THE
SECTION OF CWA OR REGULATIONS THEREUNDER THAT SUPPORT THE OBJECTION);
AND
(2) THE ACTIONS THAT MUST BE TAKEN BY THE STATE DIRECTOR IN ORDER TO
ELIMINATE THE OBJECTION (INCLUDING THE CONDITIONS WHICH THE PERMIT WOULD
INCLUDE IF IT WERE ISSUED BY THE REGIONAL ADMINISTRATOR).
(C) WHEN THE STATE DIRECTOR HAS RECEIVED AN OBJECTION TO A PERMIT
APPLICATION, DRAFT PERMIT, OR DRAFT GENERAL PERMIT UNDER THIS SECTION
AND HAS TAKEN THE STEPS REQUIRED BY THE REGIONAL ADMINISTRATOR TO
ELIMINATE THE OBJECTION, A REVISED PERMIT SHALL BE PREPARED AND
TRANSMITTED TO THE REGIONAL ADMINISTRATOR FOR REVIEW. IF NO FURTHER
OBJECTION IS RECEIVED FROM THE REGIONAL ADMINISTRATOR WITHIN 15 DAYS OF
THE RECEIPT OF THE REVISED PERMIT, THE DIRECTOR MAY ISSUE THE PERMIT.
(D) ANY OBJECTION UNDER THIS SECTION MUST BE BASED UPON ONE OR MORE
OF THE FOLLOWING GROUNDS:
(1) THE PERMIT APPLICATION, DRAFT PERMIT, OR DRAFT GENERAL PERMIT
FAILS TO APPLY, OR TO ENSURE COMPLIANCE WITH, ANY APPLICABLE REQUIREMENT
OF THIS PART;
(2) IN THE CASE OF ANY PERMIT APPLICATION FOR WHICH NOTIFICATION TO
THE ADMINISTRATOR IS REQUIRED UNDER SECTION 404(H)(1)(E) OF THE CWA, THE
WRITTEN RECOMMENDATIONS OF AN AFFECTED STATE HAVE NOT BEEN ACCEPTED BY
TE PERMITTING STATE AND THE REGIONAL ADMINISTRATOR FINDS THE REASONS FOR
REJECTING THE RECOMMENDATIONS ARE INADEQUATE (SEE SECTION 123.102(C));
(3) THE PROCEDURES FOLLOWED IN CONNECTION WITH PROCESSING THE PERMIT
FAILED IN A MATERIAL RESPECT TO COMPLY WITH PROCEDURES REQUIRED BY CWA,
BY THIS PART, BY OTHER REGULATIONS AND GUIDELINES THEREUNDER, OR BY THE
MEMORANDUM OF AGREEMENT;
(4) ANY FINDING MADE BY THE STATE DIRECTOR IN CONNECTION WITH THE
DRAFT PERMIT OR DRAFT GENERAL PERMIT MIISINTERPRETS CWA OR ANY
GUIDELINES OR REGULATIONS THEREUNDER, OR MISAPPLIES THEM TO THE FACTS;
(5) ANY PROVISIONS OF THE PERMIT APPLICATION, DRAFT PERMIT OR DRAFT
GENERAL PERMIT RELATING TO THE MAINTENANCE OF RECORDS, REPORTING,
MONITORING, SAMPLING, OR THE PROVISION OF ANY OTHER INFORMATION BY THE
PERMITTEE ARE INADEQUATE. IN THE JUDGMENT OF THE REGIONAL
ADMINISTRATOR, TO ASSURE COMPLIANCE WITH PERMIT CONDITIONS INCLUDING
WATER QUALITY STANDARDS, REQUIRED BY CWA, BY 40 CFR PART 230, OR BY THE
DRAFT PERMIT OR DRAFT GENERAL PERMIT;
(6) THE INFORMATION CONTAINED IN THE PERMIT APPLICATION IS
INSUFFICIENT TO JUDGE COMPLIANCE WITH 40 CFR PART 230; OR
(7) ISSUANCE OF A PERMIT WOULD IN ANY OTHER RESPECT BE OUTSIDE THE
REQUIREMENTS OF SECTION 404 OF CWA, OR REGULATION IMPLEMENTING SECTION
404 OF CWA.
(E) PRIOR TO NOTIFYING THE STATE DIRECTOR OF AN OBJECTION BASED UPON
ANY OF THE GROUNDS SET FORTH IN PARAGRAPH (D) OF THIS SECTION, THE
REGIONAL ADMINISTRATOR:
(1) SHALL CONSIDER ALL DATA TRANSMITTED PURSUANT TO SECTIONS 123.100
AND 123.102.
(2) SHALL, IF THE INFORMATION PROVIDED IS INADEQUATE TO DETERMINE
WHETHER THE PERMIT APPLICATION, DRAFT PERMIT, OR DRAFT GENERAL PERMIT
MEETS THE GUIDELINES AND REQUIREMENTS OF CWA, REQUEST THE STATE DIRECTOR
TO TRANSMIT TO THE REGIONAL ADMINISTRATOR DETERMINES ARE NECESSARY FOR
REVIEW. THIS REQUEST SHALL BE MADE WITHIN 30 DAYS OF RECEIPT OF THE
STATE SUBMITTAL UNDER SECTION 123.100. IT SHALL CONSTITUTE AN INTERIM
OBJECTION TO THE ISSUANCE OF THE PERMIT, AND THE PERIOD OF TIME
SPECIFIED IN THE MEMORANDUM OF AGREEMENT FOR THE REGIONAL
ADMINISTRATOR'S REVIEW SHALL BE SUSPENDED FROM THE DATE OF THE REQUEST
AND SHALL RESUME WHEN THE REGIONAL ADMINISTRATOR HAS RECEIVED SUCH
RECORD OR OTHER INFORMATION REQUESTED.
(3) MAY, IN THE CASE OF DISCHARGES FOR WHICH A DRAFT PERMIT IS NOT
AUTOMATICALLY REQUIRED UNDER SECTION 123.100(A)(2)(I), REQUEST WITHIN 30
DAYS OF RECEIPT OF THE PERMIT APPLICATION THAT THE STATE DIRECTOR
PREPARE A DRAFT PERMIT UNDER SECTION 123.100(A)(2)(II). THE DRAFT
PERMIT SHALL BE SUBMITTED TO EPA AND OTHER FEDERAL AGENCIES, AS REUIQRED
UNDER SECTION 123.100 (A)(2). WHEN A DRAFT PERMIT IS PREPARED UNDER
THIS SUBPARAGRAPH. FEDERAL AND PUBLIC REVIEW SHALL RECOMMENCE UNDER
SECTION 123.100(B)(1). THE REGIONAL ADMINISTRATOR'S PERIOD FOR REVIEW
SHALL BEGIN UPON RECEIPT OF THE DRAFT PERMIT.
(NOTE. -- IT IS ANTICIPATED THAT DRAFT PERMITS WILL BE REQUESTED
ONLY IN EXCEPTIONAL AND/OR COMPLEX CASES.)
(4) MAY, AT HIS OR HER DISCRETION, AND TO THE EXTENT FEASIBLE WITHIN
THE PERIOD OF TIME AVAILABLE UNDER THE MEMORANDUM OF AGREEMENT, AFFORD
TO INTERESTED PERSONS AN OPPORTUNITY TO COMMENT ON THE BASIS FOR THE
OBJECTION.
(F) WITHIN 90 DAYS OF RECEIPT BY THE STATE DIRECTOR OF AN OBJECTION
BY THE REGIONAL ADMINISTRATOR, THE STATE OR ANY INTERESTED PERSON MAY
REQUEST THAT A PUBLIC HEARING IN ACCORDANCE WITH THE PROCEDURES OF
SECTIONS 124.12(C) AND (D) SHALL BE HELD, AND PUBLIC NOTICE PROVIDED IN
ACCORDANCE WITH SECTION 124.10, WHENEVER REQUESTED BY THE STATE ISSUING
THE PERMIT, OR IF WARRANTED BY SIGNIFICANT PUBLIC INTEREST BASED ON
REQUESTS RECEIVED.
(G) A PUBLIC HEARING HELD UNDER PARAGRAPH (F) OF THIS SECTION SHALL
BE CONDUCTED BY THE REGIONAL ADMINISTRATOR, AND AT THE REGIONAL
ADMINISTRATOR'S DISCRETION, WITH THE ASSISTANCE OF AN EPA PANEL
DESIGNATED BY THE REGIONAL ADMINISTRATOR, IN AN ORDERLY AND EXPEDITIOUS
MANNER.
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EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
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EPA
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REGULATIONS
(H) FOLLOWING THE PUBLIC HEARING THE REGIONAL ADMINISTRATOR SHALL
REAFFIRM THE ORIGINAL OBJECTION, MODIFY THE TERMS OF THE OBEJCTION,
MODIFY THE TERMS OF THE OBJECTION, OR WITHDRAW THE OBJECTION, AND SHALL
NOTIFY THE STATE OF THIS DECISION.
(I)(1) IF NO PUBLIC HEARING IS HELD UNDER PARAGRAPH (F) OF THIS
SECTION AND THE STATE DOES NOT RESUBMIT A PERMIT REVISED TO MEET THE
REGIONAL ADMINISTRATOR'S OBJECTION OR NOTIFY EPA OF ITS INTENT TO DENY
THE PERMIT WITHIN 90 DAYS OF RECEIPT OF THE OBJECTION, THE SECRETARY MAY
ISSUE THE PERMIT IN ACCORDANCE WITH THE GUIDELINES AND REGULATIONS OF
CWA.
(2) IF A PUBLIC HEARING IS HELD UNDER PARAGRAPH (F) OF THIS SECTION,
THE REGIONAL ADMINISTRATOR DOES NOT WITHDRAW THE OBJECTION, AND THE
STATE DOES NOT RESUBMIT A PERMIT REVISED TO MEET THE REGIONAL
ADMINISTRATOR'S OBJECTION OR MODIFIED OBJECTION OR NOTIFY EPA OF ITS
INTENT TO DENY THE PERMIT WITHIN 30 DAYS OF THE DATE OF THE REGIONAL
ADMINISTRATOR'S NOTIFICATION UNDER PARAGRPAH (H) OF THIS SECTION, THE
SECRETARY MAY ISSUE THE PERMIT IN ACCORDANCE WITH THE GUIDELINES AND
REGULATIONS OF CWA.
(A) GENERAL COORDINATION (1) OF THE STATE HAS A STATEWIDE CWA SECTION
208(B)(4) REGULATORY PROGRAM, THE STATE DIRECTOR SHALL DEVELOP AN
AGREEMENT WITH THE AGENCY DESIGNATED TO ADMINISTER SUCH PROGRAM. THE
AGREEMENT SHALL INCLUDE:
(I) A DEFINITION OF THE ACTIVITIES TO BE REGULATED BY EACH PROGRAM;
(II) ARRANGEMENTS PROVIDING THE AGENCIES AN OPPORTUNITY TO COMMENT ON
PROSPECTIVE PERMITS, BMPS, AND OTHER RELEVANT ACTIONS; AND
(III) ARRANGEMENTS INCORPORATING BMPS DEVELOPED BY THE SECTION
208(B)(4) PROGRAM INTO SECTION 404 PERMITS, WHERE APPROPRIATE.
(2) WHERE A CWA SECTION 208(B)(4) PROGRAM HAS BEEN APPROVED UNDER
SECTION 208(B)(4)(C), NO PERMIT SHALL BE REQUIRED FOR ACTIVITIES FOR
WHICH THE ADMINISTRATOR HAS APPROVED BMPS UNDER SUCH APPROVED PROGRAM
EXCEPT AS PROVIDED IN SECTIONS 123.92(B) AND (C). UNTIL SUCH SECTION
208.(B)(4) PROGRAM HAS BEEN APPROVED BY THE ADMINISTRATOR, A PERSON
PROPOSING TO DISCHARGE MUST OBTAIN AN INDIVIDUAL PERMIT OR COMPLY WITH A
GENERAL PERMIT.
(3) THE STATE DIRECTOR SHALL CONSULT WITH ANY STATE AGENCY(IES) WITH
JURISDICTION OVER FISH AND WILDLIFE RESOURCES.
(B) COORDINATION WITH OTHER FEDERAL AND FEDERAL-STATE REVIEW
PROCESSES. STATE SECTION 404 PROGRAMS SHALL ASSURE COORDINATION OF
STATE SECTION 404 PERMITS WITH FEDERAL AND FEDERAL STATE WATER RELATED
PLANNING AND REVIEW PROCESSES.
(1) THE STATE DIRECTOR SHALL ASSURE THAT THE IMPACT OF PROPOSED
DISCHARGES WILL BE CONSISTENT WITH THE WILD AND SCENIC RIVERS ACT WHEN
THE PROPOSED DISCHARGE COULD AFFECT PORTIONS OF RIVERS DESIGNATED WILD,
RECREATIONAL, SCENIC, OR UNDER CONSIDERATION FOR SUCH DESIGNATION.
(2) AGENCIES WITH JURISDICTION OVER FEDERAL AND FEDERAL-STATE WATER
RELATED PLANNING AND REVIEW PROCESSES, INCLUDING THE U.S. ARMY CORPS OF
ENGINEERS, THE U.S. FISH AND WILDLIFE SERVICE, AND THE NATIONAL MARINE
FISHERIES SERVICE, SHALL NOTIFY THE REGIONAL ADMINISTRATOR THAT THEY
WISH TO COMMENT ON A PERMIT APPLICATION, DRAFT PERMIT, OR DRAFT GENERAL
PERMIT. SUCH AGENCIES SHOULD SUBMIT THEIR EVALUATION AND COMMENT TO THE
REGIONAL ADMINISTRATOR WITHIN 50 DAYS OF RECEIPT BY THE REGIONAL
ADMINISTRATOR OF THE PERMIT APPLICATION, DRAFT PERMIT, OR DRAFT GENERAL
PERMIT. THE REGIONAL ADMINISTRATOR MAY ALLOW ANY SUCH AGENCY UP TO AN
ADDITIONAL 30 DAYS TO SUBMIT COMMENTS, UPON REQUEST OF SUCH AGENCY.
(3) ALL COMMENTS FROM THE U.S. ARMY CORPS OF ENGINEERS, THE U.S.
FISH AND WILDLIFE SERVICE, AND THE NATIONAL MARINE FISHERIES SERVICE ON
PERMIT APPLICATIONS, DRAFT PERMITS, AND DRAFT GENERAL PERMITS SHALL BE
CONSIDERED BY THE REGIONAL ADMINISTRATOR. IF THE REGIONAL ADMINISTRATOR
DOES NOT ADOPT A RECOMMENDATION OF ANY SUCH AGENCY, HE SHALL CONSULT
WITH THAT AGENCY. THE FINAL DECISION TO OBJECT OR TO REQUIRE PERMIT
CONDITIONS SHALL BE MADE BY THE REGIONAL ADMINISTRATOR.
(C) COORDINATION WITH OTHER STATES. IF THE PROPOSED DISCHARGE MAY
AFFECT THE QUALITY OF THE WATERS OF ANY STATE(S) OTHER THAN THE STATE IN
WHICH THE DISCHARGE OCCURS THE STATE DIRECTOR SHALL PROVIDE AN
OPPORTUNITY FOR SUCH STATE(S) TO SUBMIT WRITTEN COMMENTS WITHIN THE
PUBLIC COMMENTS WITHIN THE PUBLIC COMMENT PERIOD ON THE EFFECT OF THE
PROPOSED DISCHARGE ON SUCH STATE(S) WATERS, AND TO SUGGEST ADDITIONAL
PERMIT CONDITIONS. IF THESE RECOMMENDATIONS ARE NOT ACCEPTED BY THE
STATE DIRECTOR, HE SHALL NOTIFY THE AFFECTED STATE AND THE REGIONAL
ADMINISTATOR IN WRITING OF HIS FAILURE TO ACCEPT THESE RECOMMENDATIONS,
TOGETHER WITH HIS REASONS FOR SO DOING.
(NOTE. -- STATES ARE ENCOURAGED TO RECEIVE AND USE INFORMATION
DEVELOPED BY THE U.S. FISH AND WILDLIFE SERVICE AS PART OF THE NATIONAL
WETLANDS INVENTORY AS IT BECOMES AVAILABLE.)
IN ADDITION TO MEETING THE REQUIREMENTS OF SECTION 123.9, STATE
SECTION 404 PROGRAMS SHALL INCLUDE PROCEDURES WHICH ENABLE THE STATE
DIRECTOR TO IMMEDIATELY AND EFFECTIVELY HALT OR REMOVE ANY UNAUTHORIZED
DISCHARGES OF DREDGED OR FILL MATERIAL, INCLUDING THE AUTHORITY TO ISSUE
A CEASE AND DESIST ORDER, INTERIM PROTECTIVE ORDER, OR RESTORATION ORDER
TO ANY PERSON RESPONSIBLE FOR, OR INVOLVED IN, AN UNAUTHORIZED
DISCHARGE.
(A) WITHIN 10 DAYS OF RECEIPT OF A COMPLETE STATE SECTION 404 PROGRAM
SUBMISSION UNDER SECTION 123.3, THE ADMINISTRATOR SHALL PROVIDE COPIES
OF THE STATE'S SUBMISSION TO THE CORPS OF ENGINEERS, THE U.S. FISH AND
WILDLIFE SERVICE, AND THE NATIONAL MARINE FISHERIES SERVICE.
(B) AFTER DETERMINING THAT A STATE PROGRAM SUBMISSION IS COMPLETE,
EPA SHALL PUBLISH NOTICE OF THE STATE'S APPLICATION IN THE FEDERAL
REGISTER, AND IN ENOUGH OF THE LARGEST NEWSPAPERS IN THE STATE TO
ATTRACT STATEWIDE ATTENTION, AND SHALL MAIL NOTICE TO PERSONS KNOWN TO
BE INTERESTED IN SUCH MATTERS, INCLUDING ALL PERSONS ON APPROPRIATE
STATE, EPA, CORPS OF ENGINEERS. U.S. FISH AND WILDLIFE SERVICE, AND
NATIONAL MARINE FISHERIES SERVICE MAILING LISTS AND ALL PERMIT HOLDERS
AND APPLICANTS WITHIN THE STATE. THIS NOTICE SHALL:
(1) PROVIDE A COMMENT PERIOD OF NOT LESS THAN 45 DAYS DURING WHICH
INTERESTED MEMBERS OF THE PUBLIC MAY EXPRESS THEIR VIEWS ON THE STATE
PROGRAM;
(2) PROVIDE FOR A PUBLIC HEARING WITHIN THE STATE TO BE HELD NO LESS
THAN 30 DAYS AFTER NOTICE OF THE HEARING IS PUBLISHED IN THE FEDERAL
REGISTER;
(3) INDICATE THE COST OF OBTAINING A COPY OF THE STATE'S SUBMISSION;
(4) INDICATE WHERE AND WHEN THE STATE'S SUBMISSION MAY BE REVIEWED BY
THE PUBLIC.
(5) INDICATE WHOM AN INTERESTED MEMBER OF THE PUBLIC SHOULD CONTACT
WITH ANY QUESTIONS; AND
(6) BRIEFLY OUTLINE THE FUNDAMENTAL ASPECTS OF THE STATE'S PROPOSED
PROGRAM, AND THE PROCESS FOR EPA REVIEW AND DECISION.
(C) WITHIN 90 DAYS OF RECEIPT OF A COMPLETE PROGRAM SUBMISSION UNDER
SECTION 123.3, THE CORPS OF ENGINEERS, THE U.S. FISH AND WILDLIFE
SERVICE, AND THE NATIONAL MARINE FISHERIES SERVICE SHALL SUBMIT ANY
COMMENTS ON THE STATE PROGRAM.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 190 OF 225
COSTLE DM ADMINISTRATOR
EPA
113689
REGULATIONS
(D) WITHIN 120 DAYS OF THE RECEIPT OF A COMPLETE PROGRAM SUBMISSION
UNDER SECTION 123.3, THE ADMINISTRATOR SHALL APPROVE OR DISAPPROVE THE
PROGRAM BASED ON THE REQUIREMENTS OF THIS PART AND OF CWA AND TAKING
INTO CONSIDERATION ALL COMMENTS RECEIVED. A RESPONSIVENESS SUMMARY
SHALL BE PREPARED BY THE REGIONAL OFFICE WHICH IDENTIFIES THE PUBLIC
PARTICIPATION ACTIVITIES CONDUCTED, DESCRIBES THE MATTERS PRESENTED TO
THE PUBLIC, SUMMARIZES SIGNIFICANT COMMENTS RECEIVED, ANDEXPLAINS THE
AGENCY'S RESPONSE TO THESE COMMENTS. THE ADMINISTRATOR SHALL RESPOND
INDIVIDUALLY TO COMMENTS RECEIVED FROM THE CORPS OF ENGINEERS, THE U.S.
FISH AND WILDLIFE SERVICE, AND THE NATIONAL MARINE FISHERIES SERVICE.
(E) IF THE ADMINISTRATOR APPROVES THE STATE'S SECTION 404 PROGRAM HE
OR SHE SHALL NOTIFY THE STATE AND THE SECRETARY AND PUBLISH NOTICE IN
THE FEDERAL REGISTER. THE SECRETARY SHALL SUSPEND THE ISSUANCE OF
SECTION 404 PERMITS BY THE CORPS OF ENGINEERS WITHIN THE STATE, EXCEPT
FOR THOSE WATERS SPECIFIED IN SECTION 404(G(1) OF CWA AND NOT IDENTIFIED
IN THE PROGRAM DESCRIPTION UNDER SECTION 123.4(H(1) AS STATE REGULATED
WATERS.
(F) IF THE ADMINISTRATOR DISAPPROVES THE STATE PROGRAM HE OR SHE
SHALL NOTIFY THE STATE OF THE REASONS FOR THE DISAPPROVAL AND OF ANY
REVISIONS OR MODIFICATIONS TO THE STATE PROGRAM WHICH ARE NECESSARY TO
OBTAIN APPROVAL.
(A) THIS SUBPART SPECIFIES ALL OF THE REQUIREMENTS A STATE PROGRAM
MUST MEET IN ORDER TO OBTAIN INTERIM AUTHORIZATION UNDER SECTION 3006(C)
OF RCRA. THE REQUIREMENTS A STATE PROGRAM MUST MEET IN ORDER TO OBTAIN
FINAL AUTHORIZATION UNDER SECTION 3006(B) OF RCRA ARE SPECIFIED IN
SUBPARTS A AND B.
(B) INTERIM AUTHOIRIZATION OF STATE PROGRAMS UNDER THIS SUBPART MAY
OCCUR IN TWO PHASES. THE FIRST PHASE (PHASE I) ALLOWS STATES TO
ADMINISTER A HAZARDOUS WASTE PROGRAM IN LIEU OF AND CORRESPONDING TO
THAT PORTION OF THE FEDERAL PROGRAM WHICH COVERS IDENTIFICATION AND
LISTING OF HAZARDOUS WASTE (40 CFR PART 261), GENERATORS (40 CFR PART
262) AND TRANSPORTERS (40 CFR PART 263) OF HAZARDOUS WASTES, AND
ESTABLISHES PRELIMINARY (INTERIM STATUS) STANDARDS FOR HAZARDOUS WASTE
TREATMENT, STORAGE AND DISPOSAL FACILITIES (40 CFR PART 265). THE
SECOND PHASE (PHASE II) ALLOWS STATES WITH INTERIM AUTHORITY FOR PHASE I
TO ESTABLISH A PERMIT PROGRAM FOR HAZARDOUS WASTE TREATMENT, STORAGE AND
DISPOSAL FACILITIES IN LIEU OF AND CORRESPONDING TO THE FEDERAL
HAZARDOUS WASTE PERMIT PROGRAM (40 CFR PARTS 264 AND 266), STATES MAY
APPLY FOR INTERIM AUTHORIZATION EITHER SEQUENTIALLY (APPLICATION FOR
INTERIM AUTHORIZATION FOR PHASE I FOLLOWED BY AN AMENDMENT OF THAT
APPLICATION FOR PHASE II) OR ALL AT ONCE (APPLICATION FOR INTERIM
AUTHORIZATION FOR BOTH PHASESI AND II AT THE SAME TIME) AS LONG AS THEY
ADHERE TO THE SCHEDULE IN SECTION 123.122.
(C) THE ADMINISTRATOR SHALL APPROVE A STATE PROGRAM WHICH MEETS THE
APPLICABLE REQUIREMENTS OF THIS SUBPART.
(D) UPON APPROVAL OF A STATE PROGRAM FOR PHASE II, THE ADMINISTRATOR
SHALL SUSPEND THE ISSUANCE OF FEDERAL PERMITS FOR THOSE ACTIVITIES
SUBJECT TO THE APPROVED STATE PROGRAM.
(E) ANY STATE PROGRAM APPROVED BY THE ADMINISTRATOR UNDER THIS
SUBPART SHALL AT ALL TIMES BE CONDUCTED IN ACCORDACNE WITH THIS SUBPART.
(F) LACK OF AUTHORITY TO REGULATE ACTIVITIES ON INDIAN LANDS DOES NOT
IMPAIR A STAT'ES ABILITY TO OBTAIN INTERIM AUTHORIZATION UNDER THIS
SUBPART. EPA WILL ADMINISTER THE PROGRAM ON INDIAN LANDS IF THE STATE
DOES NOT SEEK THIS AUTHORITY.
(NOTE. -- STATES ARE ADVISED TO CONTACT THE UNITED STATES DEPARTMENT
OF INTERIOR. BUREAU OF INDIAN AFFAIRS, CONCERNING AUTHORITY OVER INDIAN
LANDS.)
(G) NOTHING IN THIS SUBPART PRECLUDES A STATE FROM:
(1) ADOPTING OR ENFORCING REQUIREMENTS WHICH ARE MORE STRINGENT OR
MORE EXTENSIVE THAN THOSE REQUIRED UNDER THIS SUBPART.
(2) OPERATING A PROGRAM WITH A GREATER SCOPE OF COVERAGE THAN THAT
REQUIRED UNDER THIS SUBPART. WHERE AN APPROVED PROGRAM HAS A GREATER
SCOPE OF COVERAGE THAN REQUIRED BY FEDERAL LAW THE ADDITIONAL COVERAGE
IS NOT PART OF THE FEDERALLY APPROVED PROGRAM.
(A) INTERIM AUTHORIZATION FOR PHASE I SHALL NOT TAKE EFFECT UNTIL
PHASE I COMMENCES. INTERIM AUTHORIZATION FOR PHASE II SHALL NOT TAKE
EFFECT UNTIL PHASE II COMMENCES.
(B) INTERIM AUTHORIZATION MAY EXTEND FOR A 24-MONTH PERIOD FROM THE
COMMENCEMENT OF PHASE II. AT THE END OF THIS PERIOD ALL INTERIM
AUTHORIZATIONS AUTOMATICALLY EXPIRE AND EPA SHALL ADMINISTER THE FEDERAL
PROGRAM IN ANY STATE WHICH HAS NOT RECEIVED FINAL AUTHORIZATION.
(C) A STATE MAY APPLY FOR INTERIM AUTHORIZATION AT ANY TIME PRIOR TO
EXPIRATION OF THE 6TH MONTH OF THE 24-MONTH PERIOD BEGINNING WITH THE
COMMENCEMENT OF PHASE II.
(1) STATES APPLYING FOR INTERIM AUTHORIZATION PRIOR TO THE
POMULGATION OF PHASE II SHALL APPLY ONLY FOR INTERIM AUTHORIZATION FOR
PHASE I.
(2) STATES APPLYING FOR INTERIM AUTHORIZATION AFTER THE PROMULGATION
OF PHASE II BUT BEFORE THE COMMENCEMENT OF PHASE II MAY APPLY EITHER FOR
INTERIM AUTHORIZATION FOR BOTH PHASE I AND PHASE II OR ONLY FOR INTERIM
AUTHORIZATION FOR PHASE I.
(3) STATES APPLYING FOR INTERIM AUTHORIZATION AFTER THE COMMENCEMENT
OF PHASE II SHALL APPLY FOR INTERIM AUTHORIZATION FOR BOTH PHASE I AND
PHASE II, UNLESS THEY HAVE ALREADY APPLIED FOR INTERIM AUTHORIZATION FOR
PHASE I.
(4) STATES WHICH HAVE RECEIVED INTERIM AUTHORIZATION FOR PHASE I
SHALL AMEND THEIR ORIGINAL SUBMISSION TO MEET THE REQUIREMENTS FOR
INTERIM AUTHORIZATION FOR PHASE II NOT LATER THAN 6 MONTHS AFTER THE
EFFECTIVE DATE OF PHASE II.
(D) NO STATE MAY APPLY FOR INTERIM AUTHORIZATION FOR PHASE II UNLESS
IT HAS RECEIVED INTERIM AUTHORIZATION FOR PHASE I OR IS SIMULTANEOUSLY
APPLYING FOR INTERIM AUTHORIZATION FOR BOTH PHASE I AND PHASE II.
AT LEAST THREE COPIES OF A PROGRAM SUBMISSION TO EPA CONTAINING THE
FOLLOWING:
(1) A LETTER FROM THE GOVERNOR OF THE STATE REQUESTING STATE PROGRAM
APPROVAL:
(2) A COMPLETE PROGRAM DESCRIPTION, AS REQUIRED BY SECTION 123.124,
DESCRIBING HOW THE STATE INTENDS TO CARRY OUT ITS RESPONSIBILITIES UNDER
THIS SUBPART.
(3) AN ATTORNEY GENERAL'S STATEMENT AS REQUIRED BY SECTION 123.125;
(4) A MEMORANDUM OF AGREEMENT WITH THE REGIONAL ADMINISTRATOR AS
REQUIRED BY SECTION 123.126;
(5) AN AUTHORIZATION PLAN AS REQUIRED BY SECTION 123.127;
(6) COPIES OF ALL APPLICABLE STATE STATUTES AND REGULATIONS,
INCLUDING THOSE GOVERNING STATE ADMINISTRATIVE PROCEDURES.
(B) WITHIN 30 DAYS OF RECEIPT BY EPA OF A STATE PROGRAM SUBMISSION,
EPA WILL NOTIFY THE STATE WHETHER ITS SUBMISSION IS COMPLETE. IF A
STATE'S SUBMISSION IS FOUND TO BE COMPLETE. EPA'S FORMAL REVIEW OF THE
PROPOSED STATE PROGRAM SHALL BE DEEMED TO HAVE BEGUN ON THE DATE OF
RECEIPT OF THE STATE'S SUBMISSION. SEE SECTION 123.135. IF A STATE'S
SUBMISSION IS FOUND TO BE INCOMPLETE, FORMAL REVIEW SHALL NOT BEGIN
UNTIL ALL THE NECESSARY INFORMATION IS RECEIVED BY EPA.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 191 OF 225
COSTLE DM ADMINISTRATOR
EPA
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REGULATIONS
(C) IF THE STATE'S SUBMISSION IS MATERIALLY CHANGED DURING THE FORMAL
REVIEW PERIOD, THE FORMAL REVIEW PERIOD SHALL RECOMMENCE UPON RECEIPT OF
THE REVISED SUBMISSION.
(D) STATES SIMULTANEOUSLY APPLYING FOR INTERIM AUTHORIZATION FOR BOTH
PHASE I AND PHASE II SHALL PREPARE A SINGLE SUBMISSION.
(E) STATES APPLYING FOR INTERIM AUTHORIZATION FOR PHASE I AS
SPECIFIED IN SECTIONS 123.124 TO 123.127.
ANY STATE THAT WISHES TO ADMINISTER A PROGRAM UNDER THIS SUBPART
SHALL SUBMIT TO THE REGIONAL ADMINISTRATOR A COMPLETE DESCRIPTION OF THE
PROGRAM IT PRPOSES TO ADMINISTER IN LIEU OF THE FEDERAL PROGRAM UNDER
STATE LAW. A STATE APPLYING ONLY FOR INTERIM AUTHORIZATION FOR PHASE I
AS NECESSARY TO REFLECT THE PROGRAM IT PROPOSES TO ADMINSTER TO MEET THE
REQUIREMENTS FOR INTERIM AUTHORIZATION FOR PHASE II. THE PROGRAM
DESCRIPTION SHALL INCLUDE:
(A) A DESCRIPTION IN NARRATIVE FORM OF THE SCOPE, STRUCTURE,
COVERAGE, AND PROCESSES OF THE STATE PROGRAM.
(B) A DESCRIPTION (INCLUDING ORGANIZATION CHARTS) OF THE ORGANIZATION
AND STRUCTURE OF THE STATE AGENCY OR AGENCIES WHICH WILL HAVE
RESPONSIBILITY FOR ADMINISTERING THE PROGRAM INCLUDING THE INFORMATION
LISTED BELOW. IF MORE THAN ONE AGENCY IS RESPONSIBLE FOR ADMINISTRATION
OF THE PROGRAM, EACH AGENCY MUST HAVE STATEWIDE JURISDICTION OVER A
CLASS OF ACTIVITIES. THE RESPONSIBILTIES OF EACH AGENCY MUST BE
DELINEATED, THEIR PROCEDURES FOR COORDINATION SET FORTH, AND ONE OF THE
AGENCIES MUST BE DESIGNATED A "LEAD AGENCY" TO FACILITATE COMMUNICATIONS
BETWEEN EPA AND THE STATE AGENCIES HAVING PROGRAM RESPONSIBILITY. WHERE
THE STATE PROPOSES TO ADMINISTER A PROGRAM OF GREATER SCOPE OF COVERAGE
THAN IS REQUIRED BY FEDERAL LAW, THE INFORMATION PROVIDED UNDER THIS
SECTION SHALL INDICATE THE RESOURCES DEDICATED TO ADMINISTERING THE
FEDERALLY REQUIRED PORTION OF THE PROGRAM.
(1) A DESCRIPTION OF THE STATE AGENCY SATFF WHO WILL BE ENGAGED IN
CARRYING OUT THE STATE PROGRAM, INCLUDING THE NUMBER, OCCUPATIONS, AND
GENERAL DUTIES OF THE EMPLOYEES. THE STATE NEED NOT SUBMIT COMPLETE JOB
DESCRIPTIONS FOR EVERY EMPLOYEE ENGAGED IN CARRYING OUT THE STATE
PROGRAM.
(2) AN ITEMIZATION OF THE PROPOSED OR ACTUAL COSTS OF ESTABLISHING
AND ADMINISTERING THE PROGRAM, INCLUDING COST OF THE PERSONNEL LISTED IN
PARAGRAPH (B)(1) OF THIS SECTION, COST OF ADMINISTRATIVE SUPPORT AND
COST OF TECHNICAL SUPPORT.
(3) AN ITEMIZATION OF THE SOURCES AND AMOUNTS OF FUNDING INCLUDING AN
ESTIMATE OF FEDERAL GRANT MONEY, AVAILABLE TO THE STATE DIRECTOR TO MEET
THE COSTS LISTED IN PARAGRAPH (B)(2) OF THIS SECTION IDENTIFYING ANY
RESTRICTIONS OR LIMITATIONS UPON THIS FUNDING.
(C) A DESCRIPTION OF APPLICABLE STATE PROCEDURES, INCLUDING
PERMITTING PROCEDURES, AND ANY STATE APPELLATE REVIEW PROCEDURES.
(NOTE. -- STATES APPLYING ONLY FOR INTERIM AUTHORIZATION FOR PHASE I
NEED DESCRIBE PERMITTING PROCEDURES ONLY TO THE EXTENT THEY WILL BE
UTILIZED TO ASSURE COMPLIANCE WITH STANDARDS SUBSTANTIALLY EQUIVALENT TO
40 CFR PART 265.)
(D) COPIES OF THE FORMS AND THE MANIFEST FORMAT THE STATE INTENDS TO
USE IN ITS PROGRAM. FORMS USED BY THE STATE NEED NOT BE IDENTICAL TO
THE FORMS USED BY EPA, BUT SHOULD REQUIRE THE SAME BASIC INFORMATION.
IF THE STATE CHOOSES TO USE UNIFORM NATIONAL FORMS IT SHOULD SO NOTE.
(E) A COMPLETE DESCRIPTION OF THE STATE'S COMPLIANCE MONITORING AND
ENFORCEMENT PROGRAM.
(F) A DESCRIPTION OF THE STATE MANIFEST SYSTEM IF THE STATE HAS SUCH
A SYSTEM AND OF THE PROCEDURES THE STATE WILL USE TO COORDINATE
INFORMATION WITH OTHER APPROVED STATE PROGRAMS AND THE FEDERAL PROGRAM
REGARDING INTERSTATE AND INTERNATIONAL SHIPMENTS.
(G) AN ESTIMATE OF THE NUMBER OF THE FOLLOWING:
(1) GENERATORS;
(2) TRANSPORTERS; AND
(3) ON- AND OFF-SITE TREATMENT, STORAGE AND DISPOSAL FACILITIES
INCLUDING A BRIEF DESCRIPTION OF THE TYPES OF FACILTIES AND AN
INDICATION, IF APPLICABLE, OF THE PERMIT STATUS OF THESE FACILITIES.
(A) ANY STATE SEEKING TO ADMINISTER A PROGRAM UNDER THIS SUBPART
SHALL SUBMIT A STATEMENT FROM THE STATE ATTORNEY GENERAL (OR THE
ATTORNEY FOR THOSE STATE OR INTERSTATE AGENCIES WHICH HAVE INDEPENDENT
LEGAL COUNSEL), THAT THE LAWS OF THE STATE, OR THE INTERSTATE COMPACT,
PROVIDE ADEQUATE AUTHORITY TO CARRY OUT THE PROGRAM DESCRIBED UNDER
SECTION 123.124 AND TO MEET THE APPLICABLE REQUIREMENTS OF THIS SUBPART.
THIS STATEMENT SHALL INCLUDE CITATIONS TO THE SPECIFIC STATUTES,
ADMINISTRATIVE REGULATIONS, AND, WHERE APPROPRIATE JUDICIAL DECISIONS
WHICH DEMONSTRATE ADEQUATE AUTHORITY. EXCEPT AS PROVIDED IN SECTION
123.128(D), THE STATE ATTORNEY GENERAL OR INDEPENDENT LEGAL COUNSEL MUST
CERTIFY THAT THE ENABLING LEGISLATION FOR THE PROGRAM FOR PHASE I WAS IN
EXISTENCE WITHIN 90 DAYS OF THE PROMULGATION OF PHASE I. IN THE CASE OF
A STATE APPLYING FOR INTERIM AUTHORIZATION FOR PHASE II, THE STATE
ATTORNEY GENERAL OR INDEPENDENT LEGAL COUNSEL MUST CERTIFY THAT THE
ENABLING LEGISLATION FOR THE PROGRAM FOR PHASE II WAS IN EXISTENCE
WITHIN 90 DAYS OF THE PROMULGATION OF PHASE II. STATE STATUTES AND
REGULATIONS CITED BY THE STATE ATTORNEY GENERAL OR INDEPENDENT LEGAL
COUNSEL SHALL BE LAWFULLY ADOPTED AT THE TIME THE STATEMENT IS SIGNED
AND SHALL BE FULLY EFFECTIVE BY THE TIME THE PROGRAM IS APPROVED. TO
QUALIFY AS "INDEPENDENT LEGAL COUNSEL" THE ATTORNEY SIGNING THE
STATEMENT REQUIRED BY THIS SECTION MUST HAVE FULL AUTHORITY TO
INDEPENDENTLY REPRESENT THE STATE AGENCY IN COURT ON ALL MATTERS
PERTAINING TO THE STATE PROGRAM. IN THE CASE OF A STATE APPLYING ONLY
FOR INTERIM AUTHORIZATION FOR PHASE II, THE ATTORNEY GENERAL'S STATEMENT
SUBMITTED FOR INTERIM AUTHORIZATION FOR PHASE I SHALL BE AMENDED AND
RECERTIFIED TO DEMONSTRATE ADEQUATE AUTHORITY TO CARRY OUT ALL THE
REQUIREMENTS OF THIS SUBPART.
(B)(1) IN THE CASE OF A STATE APPLYING ONLY FOR INTERIM AUTHORIZATION
FOR PHASE I, THE ATTORNEY GENERAL'S STATEMENT SHALL CERTIFY THAT THE
AUTHORIZATION PLAN UNDER SECTION 123.127(A), IF CARRIED OUT, WOULD
PROVIDE THE STATE WITH ENABLING AUTHORITY AND REGULATIONS ADEQUATE TO
MEET THE REQUIREMENTS FOR FINAL AUTHORIZATION CONTAINED IN PHASE I.
(2) IN THE CASE OF A STATE APPLYING FOR INTERIM AUTHORIZATION PLAN
UNDER SECTION 123.127(B), IF CARRIED OUT, WOULD PROVIDE THE STATE WITH
ENABLING AUTHORITY AND REGULATIONS ADEQUATE TO MEET ALL THE REQUIREMENTS
FOR FINAL AUTHORIZATION.
(C) WHERE A STATE SEEKS AUTHORITY OVER ACTIVITIES ON INDIAN LANDS,
THE STATEMENT SHALL CONTAIN AN APPROPRIATE ANALYSIS OF THE STATE'S
AUTHORITY.
(A) THE STATE DIRECTOR AND THE REGIONAL ADMINISTRATOR SHALL EXECUTE A
MEMORANDUM OF AGREEMENT (MCA). IN ADDITIONATO MEETING THE REQUIREMENTS
OF PARAGRAPH (B) OF THIS SECTION, AND, IF APPLICABLE, PARAGRAPH (C) OF
THIS SECTION, THE MEMORANDUM OF AGREEMENT MAY INCLUDE OTHER TERMS,
CONDITIONS, OR AGREEMENTS RELEVANT TO THE ADMINISTRATION AND ENFORCEMENT
OF THE STATE'S REGULATORY PROGRAM WHICH ARE NOT INCONSISTENT WITH THIS
SUBPART. NO MEMORANDUM OF AGREEMENT SHALL BE APPROVED WHICH CONTAINS
PROVISIONS WHICH RESTRICT EPA'S STATUTORY OVERSIGHT RESPONSIBILITY. IN
THE CASE OF A STATE APPLYING FOR INTERIM AUTHORIZATION FOR PHASE II, THE
MEMORANDUM OF AGREEMENT SHALL BE AMENDED AND REEXECUTED TO INCLUDE THE
REQUIREMENTS OF PARAGRAPH (C) OF THIS SECTION AND ANY REVISIONS TO THE
REQUIREMENTS OF PARAGRAPH (B) OF THIS SECTION.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 192 OF 225
COSTLE DM ADMINISTRATOR
EPA
113691
REGULATIONS
(B) THE MEMORANDUM OF AGREEMENT SHALL INCLUDE THE FOLLOWING:
(1) PROVISIONS FOR THE PROMPT TRANSFER FROM EPA TO THE STATE OF
INFORMATION OBTAINED IN NOTIFICATIONS MADE PURSUANT TO SECTION 3010 OF
RCRA AND RECEIVED BY EPA PRIOR TO THE APPROVAL OF THE STATE PROGRAM, EPA
IDENTIFICATION NUMBERS FOR NEW GENERATORS, TRANSPORTERS, AND TREATMENT,
STORAGE, AND DISPOSAL FACILITIES, AND ANY OTHER INFORMATION RELEVANT TO
EFFECTIVE PROGRAM OPERATION NOT ALREADY IN THE POSSESSION OF THE STATE
DIRECTOR (E.G., PENDING PERMIT APPLICATIONS, COMPLIANCE REPORTS, ETC).
(2) PROVISIONS SPECIFYING THE FREQUENCY AND CONTENT OF REPORTS,
DOCUMENTS, AND OTHER INFORMATION WHICH THE STATE IS REQUIRED TO SUBMIT
TO EPA. THE STATE SHALL ALLOW EPA TO ROUTINELY REVIEW STATE RECORDS,
REPORTS, AND FILES RELEVANT TO THE ADMINISTRATION AND ENFORCEMENT OF THE
APPROVED PROGRAM. STATE REPORTS MAY BE COMBINED WITH GRANT REPORTS WHEN
APPROPRIATE.
(3) PROVISIONS ON THE STATE'S COMPLIANCE MONITORING AND ENFORCEMENT
PROGRAM, INCLUDING;
(I) PROVISIONS FOR COORDINATION OF COMPLIANCE MONITORING ACTIVITIES
BY THE STATE AND EPA. THESE MAY SPECIFY THE BASIS ON WHICH THE REGIONAL
ADMINISTRATOR WILL SELECT FACILITIES OR ACTIVITIES WITHIN THE STATE FOR
EPA INSPECTION. THE REGIONAL ADMINISTRATOR WILL NORMALLY NOTIFY THE
STATE AT LEAST 7 DAYS BEFORE ANY SUCH INSPECTION; AND
(II) PROCEDURES TO ASSURE COORDINATION OF ENFORCMENT ACTIVITIES.
(4) PROVISIONS FOR MODIFICATION OF THE MEMORANDUM OF AGREEMENT IN
ACCORDANCE WITH THIS PART.
(5) A PROVISION ALLOWING EPA TO CONDUCT COMPLIANCE INSPECTION OF ALL
GENERATORS, TRANSPORTERS, AND HWM FACILITIES DURING INTERIM
AUTHROIZATION. THE REGIONAL ADMINISTRATOR AND THE STATE DIRECTOR MAY
AGREE TO LIMITATIONS REGARDING COMPLIANCE INSPECTIONS OF GENERATORS,
TRANSPORTERS, AND NON-MAJOR HWM FACILITIES.
(6) A PROVISION THAT NO LIMITATIONS ON EPA COMPLIANCE INSEPCTIONS OF
GENERATORS, TRANSPORTERS, AND NON-MAJOR HWM FACILITIES UNDER PARAGRAPH
(B)(5) OF THIS SECTION SHALL RESTRICT EPA'S RIGHT TO INSEPCT ANY HWM
FACILITY, GENERATOR, OR TRANSPORTER WHICH IT HAS CAUSE TO BELIEVE IS NOT
IN COMPLIANCE WITH RCRA; HOWEVER, BEFORE CONDUCTING SUCH AN INSPECTION,
EPA WILL NORMALLY ALLOW THE STATE A REASONABLE OPPORTUNITY TO CONDUCT A
COMPLIANCE EVALUATION INSEPCTION.
(7) A PROVISION DELINEATING RESPECTIVE STATE AND EPA RESPONSIBILITIES
DURING THE INTERIM AUTHORIZATION PERIOD.
(C) IN THE CASE OF A STATE APPLYING FOR INTERIM AUTHORIZATION FOR
PHASE II, THE MEMORANDUM OF AGREEMENT SHALL ALSO INCLUDE THE FOLLOWING:
(1) PROVISIONS FOR PROMPT TRANSFER FROM EPA TO THE STATE OF PENDING
PERMIT APPLICATIONS AND SUPPORT FILES FOR PERMIT ISSUANCE. WHERE
EXISTING PERMITS ARE TRANSFERRED TO THE STATE FOR ADMINISTRATION, THE
MEMORANDUM OF AGREEMENT SHALL CONTAIN PROVISIONS SPECIFYING A PROCEDURE
FOR TRANSFERRING RESPONSIBILITY FOR THESE PERMITS. IF A STATE LACKS THE
AUTHORITY TO DIRECTLY ADMINISTER PERMITS ISSUED BY THE FEDERAL
GOVERNMENT, A PROCEDURE MAY BE ESTABLISHED TO TRANSFER RESPONSIBILITY
FOR THESE PERMITS.
(2) PROVISIONS SPECIFYING CLASSES AND CATEGORIES OF PERMIT
APPLICATIONS AND DRAFT PERMITS THAT THE STATE DIRECTOR WILL SEND TO THE
REGIONAL ADMINISTRATOR FOR REVIEW AND AND COMMENT. THE STATE DIRECTOR
SHALL PROMPTLY FORWARD TO EPA COPIES OF PERMIT APPLICATONS AND DRAFT
PERMITS FOR ALL MAJOR HWM FACILITIES. THE REGIONAL ADMINISTRATOR AND
THE STATE DIRECTOR MAY AGREE TO LIMITATIONS REGARDING REVIEW OF AND
COMMENT ON PERMIT APPLICATIONS AND DRAFT PERMITS FOR NON-MAJOR HWM
FACILITIES. THE STATE DIRECTOR SHALL SUPPLY EPA COPIES OF FINAL PERMITS
FOR ALL MAJOR HWM FACILITIES.
(3) WHERE APPROPRIATE, PROVISIONS FOR JOINT PROCESSING OF PERMITS BY
THE STATE AND EPA FOR FACILITIES OR ACTIVITIES WHICH REQUIRE PERMITS
UNDER DIFFERENT PROGRAMS, FROM BOTH EPA AND THE STATE.
THE STATE MUST SUMBIT AN "AUTHORIZATION PLAN" WHICH SHALL DESCRIBE
THE ADDITIONS AND MODIFICATIONS NECESSARY FOR THE STATE PROGRAM TO
QUALIFY FOR FINAL AUTHORIZATION AS SOON AS PRACTICABLE, BUT NO LATER
THAN THE END OF THE INTERIM AUTHROIZATION PERIOD. THIS PLAN SHALL
INCLUDE THE NATURE OF AND SCHEDULES FOR ANY CHANGES IN STATE LEGISLATION
AND REGULATIONS; RESOURCE LEVELS; ACTIONS THE STATE MUST TAKE TO
CONTROL THE COMPLETE UNIVERSE OF HAZARDOUS WASTE LISTED OR DESIGNATED
UNDER SECTION 3001 OF RCRA AS SOON AS POSSIBLE THE MANIFEST AND PERMIT
SYSTEMS; AND THE SURVEILLANCE AND ENFORCEMENT PROGRAM WHICH WILL BE
NECESSARY IN ORDER FOR THE STATE TO BECOME ELIGIBLE FOR FINAL
AUTHORIZATION.
(A) IN THE CASE OF A STATE APPLYING ONLY FOR INTERIM AUTHORIZATION
FOR PHASE I, THE AUTHORIZATION PLAN SHALL DESCRIBE THE ADDITIONS AND
MODIFICATIONS NECESSARY FOR THE STATE PROGRAM TO MEET THE REQUIREMENTS
FOR FINAL AUTHORIZATION CONTAINED IN PHASE I.
(B) IN THE CASE OF A STATE APPLYING FOR INTERIM AUTHORIZATION FOR
PHASE II, THE AUTHORIZATION PLAN UNDER PARAGRAPH (A) OF THIS SECTION
SHALL BE AMENDED TO DESCRIBE THE FURTHER ADDITIONS AND MODIFICATIONS
NECESSARY FOR THE STATE PROGRAM TO MEET ALL THE REQUIREMENTS FOR FINAL
AUTHORIZATION.
THE FOLLOWING REQUIREMENTS ARE APPLICABLE TO STATES APPLYING FOR
INTERIM AUTHORIZATION FOR PHASE I. IF A STATE DOES NOT HAVE LEGISLATIVE
AUTHORITY OR REGULATORY CONTROL OVER CERTAIN ACTIVITIES THAT DO NOT
OCCUR IN THE STATE, THE STATE MAY BE GRANTED INTERIM AUTHORIZATION FOR
PHASE I PROVIDED THE STATE AUTHORIZATION PLAN UNDER SECTION 123.127
PROVIDES FOR THE DEVELOPMENT OF A COMPLETE PROGRAM AS SOON AS
PRACTICABLE AFTER RECEIVING INTERIM AUTHORIZATION.
(A) REQUIREMENTS FOR IDENTIFICATION AND LISTING OF HAZARDOUS WASTE.
THE STATE PROGRAM MUST CONTROL A UNIVERSE OF HAZARDOUS WASTES GENERATED,
TRANSPORTED, TREATED, STORED, AND DISPOSED OF IN THE STATE WHICH IS
NEARLY IDENTICAL TO THAT WHICH WOULD BE CONTROLLED BY THE FEDERAL
PROGRAM UNDER 40 CFR PART 261.
(B) REQUIREMENTS FOR GENERATORS OF HAZARDOUS WASTE. (1) THIS
PARAGRAPH APPLIES UNLESS THE STATE COMES WITHIN THE EXCEPTION DESCRIBED
UNDER PARAGRAPH (D) OF THIS SECTION.
(2) THE STATE PROGRAM MUST COVER ALL GENERATORS OF HAZARDOUS WASTES
CONTROLLED BY THE STATE.
(3) THE STATE SHALL HAVE THE AUTHORITY TO REQUIRE AND SHALL REQUIRE
ALL GENERATORS COVERED BY THE STATE PROGRAM TO COMPLY WITH REPORTING AND
RECORDKEEPING REQUIREMENTS SUBSTANTIALLY EQUIVALENT TO THOSE FOUND AT 40
CFR SECTIONS 262.40 AND 262.41.
(4) THE STATE PROGRAM MUST REQUIRE THAT GENERATORS WHO ACCUMULATE
HAZARDOUS WASTES FOR SHORT PERIODS OF TIME PRIOR TO SHIPMENT DO SO IN A
MANNER THAT DOES NOT PRESENT A HAZARD TO HUMAN HEALTH OR THE
ENVIRONMENT.
(5) THE STATE PROGRAM SHALL PROVIDE REQUIREMENTS RESPECTING
INTERNATIONAL SHIPMENTS WHICH ARE SUBSTANTIALLY EQUIVALENT TO THOSE AT
40 CFR SECTION 262.50, EXCEPT THAT ADVANCE NOTIFICATION OF INTERNATIONAL
SHIPMENT, AS REQUIRED BY 40 CFR SECTION 262.50(B)(1), SHALL BE FILED
WITH THE ADMINISTRATOR. THE STATE MAY REQUIRE THAT A COPY OF SUCH
ADVANCE NOTICE BE FILED WITH THE STATE DIRECTOR, OR MAY REQUIRE
EQUIVALENT REPORTING PROCEDURES.
(NOTE. -- SUCH NOTICES SHALL BE MAILED TO HAZARDOUS WASTE EXPORT,
DIVISION FOR OCEANS AND REGULATORY AFFAIRS (A-107), U.S. ENVIRONMENTAL
PROTECTION AGENCY, WASHINGTON D.C. 20460).